AMENDMENT

1. There are 3 categories of amendments under the Constitution. The procedure is as follows:
 Those effected by simple majority – for that on an ordinary law. Examples include Articles 3,
169, 239A.
 Those effected by special majority – as under Article 368(2). All other constitution
amendments. Requires half of the number of members of both Houses of Parliament, as well
as by a majority of not less than two-thirds of the members of that House present and voting.
 Those which required special majority and ratification by half of the State Legislatures. The
following provisions are included within this list.
i. Election and manner of election of the President.
ii. Extent of executive power of the Union and of States.
iii. Provisions dealing with the High Court (of States and Union Territories) and
Supreme Court.
iv. Distribution of legislative power between the Union and the States.
v. The representation of States in Parliament.
vi. 7th Schedule of the Constitution.
vii. Article 368 – power and procedure to amend the Constitution.

Before starting the cases, brief background has to be explained. In Kameshwar vs Union of India
Bihar Land Reforms were challenged and held unconstitutional as it was considered as violative
of article 14 classifying zamindars in discriminatory manner. Fearing whole agricultural reforms
will be endangered 1st amendment was passed which put land reforms law in 9 th schedule which
cannot be challenged in any court of law. Shankari Prasad challenged this amendment violating
fundamental rights and hence void under 13(2) SC. SC rejected the contention by holding that
the word law in clause 2 must be taken in pursuance of ordinary legislative power. Since
amendment forms as a part of constituent power of parliament. The amendment cannot be
challenged by virtue of 13(2). Shankari Prasad held parliament has unlimited power to amend
and amendment is not a law. Sajjan singh followed shankari Prasad however, there were two
different opinions by Hidayatullah and Mudholkar. Hidayatullah states if it is really possible to
amend fundamental rights, then why are they called fundamental. Mudholkar claimed that
parliament as unlimited powers to amend but whether they can go upto amending basic features
of constitution. Golaknath overruled both the cases and held that law includes amendment also
and hence if any amendment is taking fundamental rights, then it is violative of 13(2) and hence
unconstitutional. Keshavananda Bharti by majority of 7:6 overruled Golaknath and held that
constitutional amendment can be made under article 368 which can not be challenged under
13(2) as it is not law. However, this doesn’t mean that anything can be done by introducing
amendment .This power is limited upto the extent that it is not hitting basic structure of Indian
constitution.

2. The first case dealing with amendments was Kameshwar Singh v. Union of India challenging the
policy of land reforms and land ceilings (Article 31A and 31B which were in the 9 th schedule and thus
beyond judicial scrutiny) – the first amendment which was brought about by Constituent Assembly.

3. Shankari Prasad v. Union of India was the first case to discuss whether the Fundamental Rights can
be amended by Article 368. Validity of Article 31A and 31B was challenged.
 Petitioner’s claim: Article 13(2) prohibited making of laws abridging fundamental rights, as
the amendment was law which could not contravene Part III as per Article 13(2).
  Argument rejected. Court held power to amend Constitution contained in Article 368 and the
word “law” did not include an amendment of the Constitution made in exercise of constituent
power.
 Validity of the Articles 31A and 31B subsequently reaffirmed in State of West Bengal v. Bela
Banerjee, State of West Bengal v. Subodh Gopal Bose and Dwarkadas Shrinivas v.
Sholapur Spinning Company.

4. In the case of Sajjan Singh v. State of Rajasthan the 1st, 4th and 17th amendments were challenged.
 Holding: Parliament has unlimited power to amend Constitution.
 Three of the 5 judge bench (Wanchoo J., Dayal JJ, Gajendragkar CJ) applied the same
reasoning as that in Shankari Prasad.
 Hidayatullah and Mudholkar JJ in their separate opinions questioned whether
fundamental rights imposed certain limitations on power of amendment and whether the
basic features of the constitution could be amended.

5. In the case of Golak Nath v. State of Punjab the 1st, 4th and 17th (inclusion of Punjab Security Land
Tenures Act, 1953 in the 9th Schedule) were challenged by virtue of three writ petitions.
 By a 6:5 majority, the Court dissented from the holding laid down in Sajjan Singh and
Shankari Prasad. Court held that fundamental rights were outside the amendment procedure
as given under Article 368. The two mentioned cases had erroneously interpreted Article 13 in
light of Article 368.
 There is an implied limitation of the amending power of the Parliament – it cannot amend the
fundamental rights. They have a place of permanence which is affirmed by Article 13.
However Article 13 merely expresses the reservation against the amendment of
Fundamental Rights. It otherwise arises from the scheme of the Constitution.
 Subba Rao CJ: Article 368 merely talks about the procedure to amend and not the power.
The power to amend the Constitution is found in the plenary legislative power of the
Parliament. Articles 245, 246 and 248 and Entry 97 of List I of the 7 th Schedule indicate
that the power to amend the Constitution flows from there.
 An amendment to the Constitution is a law. The constitutional insistence of the
legislative procedure is an indication of this. Article 13(2) includes constitutional
amendments under the ambit of ‘law’, and thus parliament is precluded from taking
away or abridging these rights.
 The fundamental rights could only be amended by a Constituent Assembly which would have
to be convoked by the Parliament in exercise of its residuary power.
 The 24th Amendment nullified the holding in Golak Nath by expressly excluding Article 368
from Article 13. This was again reaffirmed under Article 368, which excluded application for
Article 13 for all laws passed under it. The marginal note was changed to “power of the
Parliament to amend the Constitution” from “procedure to amend the Constitution.” Lastly,
the discretion of the President to assent to the amendment was also taken away.

6. After Golak Nath, the key events happened:

 R.C. Cooper v. Union of India: Banks across the country were nationalised. This move was
declared unconstitutional by a 10:1 majority. Held to be in contravention of Article 21.
 Jeejavji Madhav Rao Scindia v. Union of India: Privy Purses sought to be abolished in
pursuance of socialist principles and the ‘Garibi Hatao’ campaign. Held unconstitutional by a
9:2 majority.
 25th amendment which brought in Article 31C which stated that any law in pursuance of
Articles 39B and 39C could not be challenged. 29 th amendment and put the Kerala Land
 Reforms Act in the 9th Schedule. Kesavananda Bharti lost significant property. He filed a
petition opposing the same.

7. Keshavananda Bharti v. State of Kerala: 13 judge bench constituted. Final judgment can be ‘divided
into three blocks.’ Blocks A and B each had 6 judges, while Block C was constituted by Justice
Khanna alone.
 Arguments:
i. Seervai: Brought out the fallacy in Golakh Nath. Article 245 is subject to the
provisions of the constitution. It is thus not possible to bring in an amendment since it
is “subject to the constitution.”
ii. Palkivala: Power of amendment is subject to basic features (basic elements and
fundamental provisions) of the Constitution.
A. Having only such constituent power as is conferred on it by the Constitution
which is conferred upon it by the people themselves, Parliament cannot enlarge
its own power so as to abrogate the limitation in the terms on which the power
to amend was conferred;
B. Parliament cannot destroy one of the essential features of the Constitution as it
is a functionary of the Constitution itself.
C. Parliament cannot abridge or repeal any of the fundamental rights as they are
not competent to take away these basic human rights and which the people
reserved for themselves when they gave to themselves the Constitution.
th
 Validity of 24 amendment – unanimously affirmed.
 Block A (Sikri CJ, Shelot, Hegde, Grover, Reddy and Mukherjea JJ):
i. Power of amendment under Article 368 is subject to certain inherent restrictions and
an amendment cannot erode away the basic features of the Constitution.
ii. Fundamental rights are a part of this basic structure – cannot be amended.
iii. Sikri CJ: (1) Supremacy of the Constitution (2) Republican and democratic form of
government (3) Secular character of the Constitution (4) Separation of powers (5)
Federal character of the Constitution.
iv. Shelat and Grover: In addition to Sikri’s list – (1) Welfare state under as provided for
under Part IV (2) unity and integrity of the country (3) sovereignty of the country.
v. Mukherjee J and Hegde J: Same list as above.
vi. Reddy J: Based it on the preamble of the Constitution – (1) Sovereign democratic
republic (2) Parliamentary democracy and the three organs of the State (3) Part III and
Part IV of the Constitution.
 Block B (Ray, Beg, Palekar, Mathew, Dwivedi, Chadrachud JJ):
i. Adopted the literal interpretation of the Constitution. Holding in Golaknath is
incorrect, especially after the 24th amendment.
ii. Parliament has unlimited amending power. No distinction can be made between
essential and non essential features from point of view of amendment unless the
intention of the drafters clearly indicated so.
iii. Amending the constitution is an exercise of constituent power which vests with
the Parliament, and not legislative power which is what Article 13 talks about.
iv. Mathew J: These rights could be taken away or limited in special circumstances for
securing higher values in society or for its own common good.
 Block C (Justice Khanna):
i. An amendment cannot destroy the basic structure or the framework of the
Constitution.
ii. Gave an illustrative list, and included the democratic character of the
government, secularism etc.
 iii. No limitation, however on the amending power of the Constitution. No particular
part or provisions of the Constitution was subject to differential treatment.
iv. Doctrine of Contemporary Exposition: If the language of the Act is ambiguous, look at
secondary sources – Constituent Assembly Debates, Preamble, Object and Purposes
etc.
v. Latter part of Article 31C is in violation of the Basic Structure Doctrine as it takes
away judicial review.
 According to the summary of the case, Golak Nath was overruled and that Article 368 could
not alter the basic structure of the Constitution. The second part of Article 31C was
invalidated.
 Preamble held to be a part of the Constitution.

8. The basic structure doctrine was examined in Indira Gandhi v. Raj Narain. Appeal against the
election being declared void of Indira Gandhi on grounds of corruption. 39th Amendment passed
which withdrew jurisdiction of courts over election disputes involving the Prime Minister.
 Contention raised by the respondent: Parliament in exercise of constituent power cannot
exercise power to validate an election declared void by the High Court. Unanimously upheld
by the Court. Parliament cannot adjudicate on election disputes.
 Khanna and Mathew JJ: Democracy is part of the Basic Structure. Separation of powers –
parliament cannot exercise judicial and quasi judicial functions.
 Chandrachud: (1) Sovereign democratic republic (2) Equality of status and opportunity of
an individual (3) Secularism and freedom of conscience and religion (4) Government of
laws. Spoke about checks and balances.
 Beg J: Supremacy of the Constitution and Separation of powers. Basic Structure controlled
ordinary legislation too.
 Ray CJ (Dissent) : Constituent power above the Constitution and doctrine of Separation of
powers. Not bound by judicial review. Democracy was a part of the basic structure, but not
fair and free elections or judicial interpretation of election disputes. Ordinary legislation
outside the purview of the doctrine. Judicial review not a part of the basic structure on
basis of the “rule of law.” However this is harshly criticised.
 Holding: It was not available to test the validity of the impugned reservation provisions
of the Representation of People’s Act, 1951 as there was no ambiguity to be resolved
about the ordinary law making power of the Parliament. However under the guise of
legislative power, the Parliament could not adjudicate upon election disputes.

9. Thereafter the 42nd Amendment was enacted which stated that any provision giving effect to part four
cannot be held violative of fundamental rights and was the jurisdiction of the Courts. Minerva Mills
was subsequently nationalised and the law which effected this was placed in the 9th schedule. Further
368(4) and 368(5) precluded the Court from hearing any matter relating to Constitutional
Amendments. This was challenged in Minerva Mills v. Union of India. In order to hear the case,
Article 368(4) and 368(5) would have to be invalidated.
 Amendment to Article 368 invalidated. The Constitution has conferred upon the Parliament
a limited amending power. This power cannot be enlarged into an absolute power. This
limited amending power is a part of the Basic Structre.
 Article 31C held unconstitutional as it gave primacy to DPSPs over Fundamental Rights.
The two are to be construed harmoniously and this principle is part of the Basic Structure.

10. In Waman Rao v. Union of India, Articles 31A and 31B and the 9th Schedule were held to be in
consonance with the Basic Structure.
  All amendments made after Keshavananda Bharti had to satisfy the Basic Structure test and
this included the laws in the 9 th Schedule. Not the content of the law, but the amendment
which inserts it in the 9th Schedule.
 However, the test did not apply retrospectively.

11. S.R. Bommai v. Union of India recognised federalism as one of the features of the Basic Structure.

12. M. Nagraj v. Union of India upheld the validity of the 77th, 81st and 85th Amendments.
 Amendments were curative in nature. The amendments restored the basic structure by
overruling judicial interpretation. Thus determination of basic structure is not exclusively
within the domain of the executive.
 Test for Basic Structure doctrine laid down: (i) Width Test and (ii) Identity Test –
collectively known as the Essence of Rights test.
i. The Width Test stipulated that a feature/right (which is part of the basic structure) is to
be given its widest possible interpretation and then see if the amendment
contravenes it.
ii. The Identity Test stipulates that an amendment must not change the distinct identity of
the Constitution. The identity of the wider principles of the Constitution must not be
adversely affected.
 Equality held to be part of the Basic Structure.

13. I.R. Coelho v. State of Tamil Nadu a 9 judge bench unanimously reaffirmed the principles laid down
in Waman Rao.
 Laid down the Rights Test.
i. If the amendment is attempting to bypass the Golden Triangle, then the rights
test has to apply.
ii. The difference between the Essence of Rights Test and the Rights Test is that if
an entire chapter is invalidated, then the rights test, and not the essence of rights
test will apply.
iii. ‘The effect and impact of the law on the rights guaranteed under Part III has to be
taken into account for determining whether or not it destroys the basic structure.
 The amendment is not subject merely to the test, but the law/right itself. The ‘essence of
rights’ can be bypassed. In cases concerning the Right to Equality or the Right to Life, these
rights cannot be taken away.
 Gave a hierarchy of the Fundamental Rights.

14. D. Conrad: Only clearest cases of transgression would justify judicial intervention which functions
as a remedy of last resort. These cases are discernible by an element of abuse of power, or some
collateral purpose appearing behind the purported scope of the amendment. In the absence of a
general presumption of constitutionality must operate even more than in the case of ordinary
legislation.

List of Cases for this Topic:

1. XGolak Nath v. State of Punjab
2. I.R. Coelho v. State of Tamil Nadu
3. Indira Gandhi v. Raj Narain
4. Jeejavji Madhav Rao Scindia v. Union of India
5. Kameshwar Singh v. Union of India
6. Keshavananda Bharti v. State of Kerala
7. M. Nagraj v. Union of India
8. Minerva Mills v. Union of India
9. R.C. Cooper v. Union of India
10. S.R. Bommai v. Union of India
11. Sajjan Singh v. State of Rajasthan
12. Shankari Prasad v. Union of India
13. Waman Rao v. Union of India
On Constitutional Amendment and the Basic Structure

Case: Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 (Coram: Sikri, C.J., Shelat,
Hegde, Grover, Ray, Jaganmohan Reddy, Palekar, Khanna, Mathew, Beg, Dwidedi,
Mukherjea, Chandrachud, JJ.)

After the Supreme Court Judgement in Golaknath’s case where Subba Rao, C.J., had held that
Fundamental Rights were beyond the Parliament’s powers of making Constitutional Amendments, a
number of amendments were made to dilute and overrule its impact. Specifically put, the 24 th, 25th
and 29th Amendments were up for immediate challenge. Of these, the 24 th Amendment clearly spelt
out that constitutional amendments are made by exercise of the constituent power, as opposed to the
legislative power, of the Parliament, and that the Parliament has an unlimited amending power, not
restricted by any requirement to conform to Fundamental Rights or any other provision. 25 th
Amendment immunised laws made in pursuance of certain social justice policies enshrined in the
DPSPs from Judicial Review. The 29th Amendment, which was the immediate trigger to the
Kesavananda dispute, had put several laws, including a Kerala Land Reform Law, into the ninth
Schedule of the Constitution. Thus, the constitutional validity of all these amendments was called up
for question in arguably one of the world’s most significant constitutional decisions.

In this discussion, we would specifically focus on the aspect of Basic Structure (and Basic Features)
as put forward by 7 of the 13 judges, and eventually discuss the summary of the findings of the Bench
(interestingly, signed by only 9 out of the 13 judges). While summarising the judgement, we will look
at the epoch-making judgement of Khanna, J., which proved to be the clincher, so far as the
determination of the majority opinion was concerned.

Per Khanna, J.:

[After traversing the trajectory of cases preceding Kesavananda, the Learned Judge dismantled the
main reasoning of the majority in Golaknath that constitutional amendments are laws and any such
legislative process leading to change in the content of laws has to be subservient to the Fundamental
Rights, and that the unamended Article 368 only contained the ‘procedure’ to amend the constitution,
the ‘power’ lying somewhere else. The Learned Judge, pointing out the logical loopholes in the above
proposition, moved on to the primary question on whether the amending power of the Parliament is
absolute. He opined:]
Question then arises as to whether there is any power under Article 368 of amendment of Part III so
as to take away or abridge fundamental rights. In this respect we find that Article 368 contains
provisions relating to amendment of the Constitution. No words are to be found in Article 368 as may
indicate that a limitation was intended on the power of making amendment of Part III with a view to
take away or abridge fundamental rights. On the contrary, the words used in Article 368 are that if the
procedure prescribed by that article is complied with, the Constitution shall stand amended. The
words "the Constitution shall stand amended" plainly cover the various articles of the Constitution,
and I find it difficult in the face of those clear and unambiguous words to exclude from their
operation the articles relating to fundamental rights in Part III of the Constitution. It is an
elemental rule of construction that while dealing with a Constitution every word is to be expounded
in its plain, obvious and commonsense unless the context furnishes some ground to control, qualify or
enlarge it and there cannot be imposed upon the words any recondite meaning or any extraordinary
gloss. It has not yet been erected into a legal maxim of Constitutional construction that words were
meant to conceal thoughts. If framers of the Constitution had intended that provisions relating to
fundamental rights in Part III be not amended, it is inconceivable that they would not have inserted a
provision to that effect in Article 368 or elsewhere. I cannot persuade myself to believe that the
framers of the Constitution deliberately used words which cloaked their real intention when it would
have been so simple a matter to make the intention clear beyond any possibility of doubt.

[He further substantiated this proposition by analysing the visions of the constitutional founding
fathers by drawing references to the Constituent Assembly Debates, and the use of the doctrine of
contemporaneous exposition, by referring to the fact that the First Amendment to the Indian
Constitution, which made significant amendments to the Fundamental Rights Chapter was made by
the Provisional Parliament, whose members were none other than the members of the Constituent
Assembly themselves].

The next question which arises for consideration is whether the word "law" in Article 13(2) includes
amendment of the Constitution. [...] I find it difficult to accept the contention that an amendment of
Constitution made in accordance with Article 368 constitutes law for the purpose of Article
13(2). The word "law" although referred to in a large number of other articles of the Constitution
finds no mention in Article 368. According to that article, the Constitution shall stand amended in
accordance with the terms of the Bill after it has been passed in compliance with the provisions of
that article. Article 368 thus contains an indication that what follows as a result of the compliance
with Article 368 is an amendment of the Constitution and not law in the sense of being ordinary
legislation. In a generic sense, "law" would include Constitutional laws, including amendment of the
Constitution, but that does not seem to be the connotation of the word "law" as used in Article
13(2) of the Constitution. There is a clear distinction between statutory law made in exercise of
the legislative power and Constitutional law which is made in exercise of the constituent power
and the distinction should not be lost sight of. A Constitution is the fundamental and basic law and
provides the authority under which ordinary law is made. The Constitution of West Germany, it may
be stated, is called the basic law of the Federal Republic of Germany. A Constitution derives its
authority generally from the people acting in their sovereign capacity and speaking through their
representatives in a Constituent Assembly or Convention. It relates to the structure of the
government, the extent and distribution of its powers and the modes and principles of its operation,
preceding ordinary laws in the point of time and embracing the settled policy of the nation. A statute
on the other hand is law made by the representatives of the people acting in their legislative capacity,
subject to the superior authority, which is the Constitution. Statutes are enactments or rules for the
government of civil conduct or for the administration or for the defence of the government. They
relate to law and order, criminal offences, civil disputes, fiscal matters and other subjects on which it
may become necessary to have law. Statutes are quite often tentative, occasional, and in the nature of
temporary expedients.

Article 13(2) has reference to ordinary piece of legislation. It would also, in view of the definition
given in Clause (a) of Article 13(3), include any ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the force of law. The Constitution has
thus made it clear in matters in which there could be some doubt as to what would constitute "law". If
it had been the intention of the framers of the Constitution that the "law" in Article 13 would also
include Constitutional law including laws relating to the amendment of Constitution, it is not
explained as to why they did not expressly so state in Clause (a) of Article 13(3). [...]

[The Learned Judge referred to several articles of the Constitution to underline his proposition that
constitutional amendments are not ‘laws’ within the meaning of Article 13. The natural corollary of
this proposition is that they are not restricted by Part III of the Constitution. But, does it mean that the
Parliament’s amending power is absolute and unfettered. On this point, he opined:]

The next question which should now engage our attention is about the necessity of amending the
Constitution and the reasons which weighed with the framers of the Constitution for making
provision for amendment of the Constitution. A Constitution provides the broad outlines of the
administration of a country and concerns itself with the problems of the Government. This is so
whether the Government originates in a forcible seizure of power or comes into being as the result of
a legal transfer of power. At the time of the framing of the Constitution many views including those
emanating from conflicting extremes are presented. In most cases the Constitution is the result of a
compromise between conflicting views. Those who frame a Constitution cannot be oblivious of the
fact that in the working of a Constitution many difficulties would have to be encountered and that it is
beyond the wisdom of one generation to hit upon a permanently workable solution for all problems
which may be faced by the State in its onward march towards further progress. Sometimes a judicial
interpretation may make a Constitution broad-based and put life into the dry bones of a Constitution
so as to make it a vehicle of a nation's progress. Occasions may also arise where judicial
interpretation might rob some provision of a Constitution of a part of its efficacy as was contemplated
by the framers of the Constitution. If no provision were made for the amendment of the Constitution,
the people would be left with no remedy or means for adapting it to the changing need of times and
would per force have recourse to extra-Constitutional methods of changing the Constitution. The
extra-Constitutional methods may sometimes be bloodless but more often they extract a heavy toll of
the lives of the citizen and leave a trail of smouldering bitterness. A State without the means of some
change, as was said by Burke in his Reflections on Revolution, is without the means of its
conservation. Without such means it might even risk the loss of that part of the Constitution which it
wished the most religiously to preserve. [He went on to refer to more scholarly literature and
historical references on the need to balance such change with the need for conservation, and
observed:]

The machinery of amendment, it has been said, should be like a safety valve, so devised as neither to
operate the machine with too great facility nor to require, in order to set it in motion, an accumulation
of force sufficient to explode it. In arranging it, due consideration should be given on the one hand to
the requisities of growth and on the other hand to those of conservatism. The letter of the Constitution
must neither be idolized as a sacred instrument with that mistaken conservatism which ding to its own
worn out garments until the body is ready to perish from cold, nor yet ought it to be made a plaything
of politicians, to be tampered with and degraded to the level of an ordinary statute.

The framers of our Constitution were conscious of the desirability of reconciling the urge for change
with the need of continuity. They were not oblivious of the phenomenon writ large in human history
that change without continuity can be anarchy; change with continuity can mean progress; and
continuity without change can mean no progress. The Constitution-makers have, therefore, kept the
balance between the danger of having a non-amendable Constitution and a Constitution which is too
easily amendable. It has accordingly been provided that except for some not very vital amendments
which can be brought about by simple majority, other amendments can be secured only if they are
passed in each House of Parliament by a majority of the total membership of that House and by a
majority of not less than two-thirds of the members of each House present and voting. Provision is
further made that in respect of certain matters which affect the interest of the States the amendment
must also be ratified by the legislatures of not less than one half of the States by resolution to that
effect. It can, therefore, be said that while a provision has been made for amendment of the
Constitution, the procedure for the bringing about of amendment is not so easy as may make it
a plaything of politicians to be tampered with and degraded to the level of ordinary statute. The
fact that during the first two decades after the coming into force of the Constitution the amending
Bills have been passed without much difficulty with requisite majority is a sheer accident of history
and is due to the fact that one party has happened to be in absolute majority at the Centre and many of
the States. This circumstance cannot obliterate the fact that in normal circumstances when there are
well balanced parties in power and in opposition the method of amending the Constitution is not so
easy.

Another circumstance which must not be lost sight of is that no generation has monopoly of wisdom
nor has any generation a right to place fetters on future generations to mould the machinery of
government and the laws according to their requirements. Although guidelines for the organization
and functioning of the future government may be laid down and although norms may also be
prescribed for the legislative activity, neither the guidelines should be so rigid nor the norms so
inflexible and unalterable as should render them to be incapable of change, alteration and replacement
even though the future generations want to change, alter or replace them. The guidelines and norms
would in such an event be looked upon as fetters and shackles upon the free exercise of the sovereign
will of the people in times to come and would be done away with by methods other than
Constitutional. It would be nothing short of a presumptuous and vain act and a myopic obsession with
its own wisdom for one generation to distrust the wisdom and good sense of the future generation and
to treat them in a way as if the generations to come would not be sui juris. The grant of power of
amendment is based upon the assumption that as in other human affairs, so in Constitutions, there are
no absolutes and that the human mind can never reconcile itself to fetters in its quest for a better order
of things. Any fetter resulting from the concept of absolute and ultimate inevitably gives birth to the
urge to revolt. [...]

[In this context, he also looks at the scope of the word ‘amendment’ in Article 368. According to
him:]
We may now deal with the question as to what is the scope of the power of amendment under Article
368. This would depend upon the connotation of the word "amendment". Question has been posed
during arguments as to whether the power to amend under the above article includes the power to
completely abrogate the Constitution and replace it by an entirely new Constitution. The answer to
the above question, in my opinion, should be in the negative. I am further of the opinion that
amendment of the Constitution necessarily contemplates that the Constitution has not to be abrogated
but only changes have to be made in it. The word "amendment" postulates that the old Constitution
survives without loss of its identity despite the change and continues even though it has been
subjected to alterations. As a result of the amendment, the old Constitution cannot be destroyed and
done away with; it is retained though in the amended form. What then is meant by the retention of
the old Constitution? It means the retention of the basic structure or framework of the old
Constitution. A mere retention of some provisions of the old Constitution even though the basic
structure or framework of the Constitution has been destroyed would not amount to the retention of
the old Constitution. Although it is permissible under the power of amendment to effect changes,
howsoever important, and to adapt the system to the requirements of changing conditions, it is
not permissible to touch the foundation or to alter the basic institutional pattern. The words
"amendment of the Constitution" with all their wide sweep and amplitude cannot have the
effect of destroying or abrogating the basic structure or framework of the Constitution. It would
not be competent under the garb of amendment, for instance, to change the democratic government
into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the
Rajya Sabha. The secular character of the state according to which the state shall not discriminate
against any citizen on the ground of religion only cannot likewise be done away with. Provision
regarding the amendment of the Constitution does not furnish a pretence for subverting the structure
of the Constitution nor can Article 368 be so construed as to embody the death wish of the
Constitution or provide sanction for what may perhaps be called its lawful harakiri. Such subversion
or destruction cannot be described to be amendment of the Constitution as contemplated by Article
368.

[He outlined the relevance and ambit of the Basic Structure thus:]

It has not been disputed during the course of arguments that the power of amendment under Article
368 does not carry within itself the power to repeal the entire Constitution and replace it by a new
Constitution. If the power of amendment does not comprehend the doing away of the entire
Constitution but postulates retention or continuity of the existing Constitution, though in an amended
form, question arises as to what is the minimum of the existing Constitution which should be left
intact in order to hold that the existing Constitution has been retained in an amended form and not
done away with. In my opinion, the minimum required is that which relates to the basic structure or
framework of the Constitution. If the basic structure is retained, the old Constitution would be
considered to continue even though other provisions have undergone change. On the contrary,
if the basic structure is changed, mere retention of some articles of the existing Constitution
would not warrant a conclusion that the existing Constitution continues and survives.

[In conclusion, he observed:]

Subject to the retention of the basic structure or framework of the Constitution, I have no
doubt that the power of amendment is plenary and would include within itself the power to add,
alter or repeal the various articles including those relating to fundamental rights. [...]

The word "amendment" in Article 368 must carry the same meaning whether the amendment relates
to taking away or abridging fundamental rights in Part III of the Constitution or whether it pertains to
some other provision outside Part III of the Constitution. No serious objection is taken to repeal,
addition or alteration of provisions of the Constitution other than those in Part III under the power of
amendment conferred by Article 368. The same approach, in my opinion, should hold good when we
deal with amendment relating to fundamental rights contained in Part III of the Constitution. It would
be impermissible to differentiate between scope and width of power of amendment when it
deals with fundamental right and the scope and width of chat power when it deals with
provisions not concerned with fundamental rights.

[He used the Basic Structure Doctrine to test the constitutional validity of the 24 th, 25th and 29th
Constitutional Amendments. He found that apart from the second part of the 25 th Amendment (the
last part of Article 31C which says that no court would be competent to look into the question as to
whether a particular law is in pursuance of Article 39(b) or 39(c) of the Constitution), he found that
none of the other impugned Amendments violated the Basic Structure. He finally held:]

(i) Article 368 contains not only the procedure for the amendment of the Constitution but also confers
the power of amending the Constitution.

(ii) Entry 97 in List I of the Seventh Schedule of the Constitution does not cover the subject of
amendment of the Constitution.

(iii) The word "law" in Article 13(2) does not include amendment of the Constitution. It has reference
to ordinary piece of legislation. It would also in view of the definition contained in Clause (a)
of Article 13(3) include an ordinance, order, bye-law, rule, regulation, notification, custom or usage
having in the territory of India the force of law.

(iv) Provision for amendment of the Constitution is made with a view to overcome the difficulties
which may be encountered in future in the working of the Constitution. No generation has a
monopoly of wisdom nor has it a right to place fetters on future generations to mould the machinery
of governments. If no provision were made for amendment of the Constitution, the people would
have recourse to extra-Constitutional method like revolution to change the Constitution.

(v) Argument that Parliament can enact legislation under entry 97 List I of Seventh Schedule for
convening a Constituent Assembly or holding a referendum for the purpose of amendment of Part III
of the Constitution so as to take away or abridge fundamental rights is untenable. There is no warrant
for the proposition that as the amendments under Article 368 are not brought about through
referendum or passed in a Convention the power of amendment under Article 368 is on that account
subject to limitations.

(vi) The possibility that power of amendment may be abused furnishes no ground for denial of its
existence. The best safeguard against abuse of power is public opinion and the good sense of the
majority of the members of Parliament, It is also not correct to assume that if Parliament is held
entitled to amend Part III of the Constitution, it would automatically and necessarily result in
abrogation of all fundamental rights.

(vii) The power of amendment under Article 368 does not include power to abrogate the Constitution
nor does it include the power to alter the basic structure or framework of the Constitution. Subject to
the retention of the basic structure or framework of the Constitution, the power of amendment is
plenary and includes within itself the power to amend the various articles of the Constitution,
including those relating to fundamental rights as well as those which may be said to relate to essential
features. No part of a fundamental right can claim immunity from amendatory process by being
described as the essence or core of that right. The power of amendment would also include within
itself the power to add, alter or repeal the various articles.

(viii) Right to property does not pertain to basic structure or framework of the Constitution.

(ix) There are no implied or inherent limitations on the power of amendment apart from those which
inhere and are implicit in the word "amendment". The said power can also be not restricted by
reference to natural or human rights. Such rights in order to be enforceable in a court of law must
become a part of the statute or the Constitution.
(x) Apart from the part of the Preamble which relates to the basic structure or framework of the
Constitution, the Preamble does not restrict the power of amendment.

(xi) The Constitution (Twenty fourth Amendment) Act does not suffer from any infirmity and as such
is valid.

(xii) The amendment made in Article 31 by the Constitution (Twenty fifth Amendment) Act is valid.

(xiii) The first part of Article 31C introduced by the Constitution (Twenty fifth Amendment) Act is
valid. [...]

(xiv) The second part of Article 31C contains the seed of national disintegration and is invalid on the
following two grounds:

(1) It gives a carte blanche to the Legislature to make any law violative of Articles 14, 19 and 31 and
make it immune from attack by inserting the requisite declaration. Article 31C taken along with its
second part gives in effect the power to the Legislature, including a State Legislature, to amend the
Constitution in important respects.

(2) The legislature has been made the final authority to decide as to whether the law made by it is for
objects mentioned in Article 31C. The vice of second part of Article 31C lies in the fact that even if
the law enacted is not for the object mentioned in Article 31C, the declaration made by the
Legislature precludes a party from showing that the law is not for that object and prevents a court
from going into the question as to whether the law enacted is really for that object. The exclusion by
Legislature, including a State Legislature, of even that limited judicial review strikes at the basic
structure of the Constitution. The second part of Article 31C goes beyond the permissible limit of
what constitutes amendment under Article 368.

The second part of Article 31C can be severed from the remaining part of Article 31C and its
invalidity would not affect the validity of remaining part. I would, therefore, strike down the
following words in Article 31C:

“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”.

(xv) The Constitution (Twenty ninth Amendment) Act does not suffer from any infirmity and as such
is valid.
[The other Judges in the majority contributed to the list of the Basic Features that form the Basic
Structure. To briefly Catalogue them with reference to the Learned Judge who gave them out, would
be worthwhile in this context].

Per Sikri, C.J.:

The true position is that every provision of the Constitution can be amended provided in the result the
basic foundation and structure of the Constitution remains the same. The basic structure may be said
to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government.

(3) Secular character of the Constitution;

(4) Separation of powers between the Legislature, the executive and the judiciary;

(5) Federal character of the Constitution.

The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual.
This is of supreme importance. This cannot by any form of amendment be destroyed.

Per Shelat and Grover, JJ.:

The basic structure of the Constitution is not a vague concept and the apprehensions expressed on
behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are
unfounded. If the historical background, the Preamble, the entire scheme of the Constitution, the
relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in
discerning that the following can be regarded as the basic elements of the Constitutional structure.
(These cannot be catalogued but can only be illustrated).

1. The supremacy of the Constitution.

2. Republican and Democratic form of Government and sovereignty of the country.

3. Secular and federal character of the Constitution.

4. Demarcation of power between the legislature, the executive and the judiciary.
5. The dignity of the individual (secured by the various freedoms and basic rights in Part III and the
mandate to build a welfare State contained in Part IV.

6. The unity and the integrity of the nation.

Per Hegde and Mukherjea, JJ.:

[They did not specify any feature to be basic. However, they observed:]

Though the power to amend the Constitution under Article 368 is a very wide power, it does not yet
include the power to destroy or emasculate the basic elements or the fundamental features of the
Constitution.

Per Jaganmohan Reddy, J.:

[The Learned put a lot of emphasis on the Preamble of the Constitution. He observed:]

There is nothing vague or unascertainable in the preamble and if what is stated therein is subject to
this criticism it would be equally true of what is stated in Article 39(b) and (c) as these are also
objectives fundamental in the governance of the country which the State is enjoined to achieve for the
amelioration and happiness of its people. The elements of the basic structure are indicated in the
preamble and translated in the various provisions of the Constitution. The edifice of our Constitution
is built upon and stands on several props, remove any of them, the Constitution collapses. These are:
(1) Sovereign Democratic Republic; (2) Justice, social, economic and political; (3) Liberty of
thought, expression, belief, faith and worship; (4) Equality of status and of opportunity. Each one of
these is important and collectively they assure a way of life to the people of India which the
Constitution guarantees. To withdraw any of the above elements the structure will not survive and it
will not be the same Constitution, or this Constitution nor can it maintain its identity, if something
quite different is substituted in its place, which the sovereign will of the people alone can do.

[Finally, a summary was signed by 9 of the 13 Judges, outlining the key findings of the Bench. In the
summary, the Court held the following:

(1) I.C. Golak Nath v. State of Punjab was overruled;

 (2) The Constitution (Twenty-fourth Amendment) Act, 1971 was valid;

(3) Article 368, as amended, was valid but it did not confer power on the Parliament to alter the basic
structure or framework of the Constitution. The court, however, did not spell out in any exhaustive
manner as to what the basic structure/framework was except that some judges gave a few examples.

(4) The amendment of Article 31C containing the words “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” was held invalid.

(5) The Constitution (Twenty-ninth Amendment) Act, 1972 was held valid].

Comment: This case marks a watershed moment in the Indian Constitutional history. The
constitutional journey of India is very often divided into pre-Kesavananda and post-Kesavananda
phases. The case makes it absolutely clear that the Parliament’s plenary power of making
amendments is circumscribed by the existence of the insurmountable Basic Structure of the
Constitution. In other words, the Basic Structure Doctrine reinforces the fact that in a Constitutional
state like ours, it is the Constitution, and not any political rulers, which is supreme, and in order to
maintain its supremacy, a perfect blend of dynamism and conservationism is an absolute necessity.

On the Application of the Basic Structure Doctrine

Case: Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2229 (Coram: Ray, C.J., Khanna,
Mathew, Beg, Chandrachud, JJ.)

During the General Parliamentary Elections of 1971, Mrs. Indira Gandhi, the Prime Minister, was
declared the winning candidate from the Rae Bareli Constituency in Uttar Pradesh. Sri Raj Narain,
her electoral opponent, filed an election petition under section 80 (read with section 100) of the
Representation of People Act, 1951 to challenge her election, alleging inter alia corrupt practices on
her part. The appeal to the Supreme Court arose after the Allahabad High Court found her guilty on
two of the alleged counts.

Meanwhile, while a single judge vacation bench (presided over by Krishna Iyer, J.) gave a conditional
stay to Mrs. Gandhi, the Government went ahead to pass the Constitution (Thirty Ninth) Amendment
Act, 1975, which immunised the election of inter alia the Prime Minister from judicial scrutiny.
Article 329A, which was introduced through this amendment, would make sure that any dispute
arising out of the election of these public functionaries would be adjudicated upon by the Parliament,
and not the Judiciary. This alleged abridgement of the power of Separation of Powers, Judicial
Review, Equality and Free and Fair Elections gave an opportunity to the Court to engage the newly-
formulated Basic Structure Doctrine.

Per Ray, C.J.:

[The Learned Chief Justice scrutinised Article 329A and declared clause (4) thereof to be in violation
of the Basic Structure Doctrine. He opined:]

The constitutional validity of clause (4) of Article 329A falls for consideration. Clause (4) of Article
329A is challenged on two grounds. First, it destroys or damages the basic features or basic structure
of the Constitution. Reliance is placed in support of the contention on the majority view of seven
learned Judges in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala. [The
Second ground mentioned by him was that since the National Emergency had been proclaimed and
most of the opposition members were in jail, there was no substantial discussion in the Parliament
when this amendment was passed. On the first contention, the Learned Judge held:]

The Constitution Amendment affects the basic structure of institutional pattern adopted by the
Constitution. The basic feature of separation of powers with the role of independence of
Judiciary is changed by denying jurisdiction of this Court to test the validity of the election. The
essential feature of democracy will be destroyed if power is conceded to Parliament to declare
the elections void according to law under which it has been held to be valid. This is illustrated by
saying that Parliament can be law declare the election of persons against the predominant ruling party
to be void. If the majority party controls the Legislature and the Executive, the Legislature could not
have any say as to whether the Executive was properly elected. Free and fair elections are part of
democratic structure and an election which has been held to be invalid for violation of the
principles of free and fair elections and by commission of corrupt practices is validated.

[Thus, he invalidated the impugned clause as being violative of the Basic Structure. However, he
refused to scrutinise the Representation of Peoples Act in light of the Basic Structure Doctrine as, in
his opinion, the Basic Structure Doctrine is available only to check the validity of constitutional
amendments. He opined:]
The contentions on behalf of the respondent that ordinary legislative measures are subject like
Constitution Amendments to the restrictions of not damaging or destroying basic structure, or basic
features are utterly unsound. It has to be appreciated at the threshold that the contention that
legislative measures are subject to restrictions of the theory of basic structures or basic features
is to equate legislative measures with Constitution Amendment. [...]

To accept the basic features or basic structures theory with regard to ordinary legislation would mean
that there would be two kinds of limitations for legislative measures. One will pertain to legislative
power under Article 245 and 246 and the legislative entries and the provision in Article 13. The other
would be that no legislation can be made as to damage or destroy basic features or basic structures.
This will mean rewriting the Constitution and robbing the Legislature of acting within the framework
of the Constitution. No legislation can be free from challenge on this ground even though the
legislative measure is within the plenary powers of the Legislature.

[...]

The theory of basic structures or basic features is an exercise in imponderables. Basic structures or
basic features are indefinable. The legislative entries are the fields of legislation. The pith and
substance doctrine has been applied in order to find out legislative competency, and eliminate
encroachment on legislative entries. If the theory of basic structures or basic features will be
applied to legislative measures it will denude Parliament and State Legislature of the power of
legislation and deprive them of laying down legislative policies. This will be encroachment on
the separation of powers.

[Thus, even though Article 329(4) was struck down as being violative of the Basic Structure
Doctrine, the Learned Judge refused to use the Doctrine vis-a-vis an ordinary law, in this case, the
Representation of People Act and the Election Laws (Amendment) Act.]

Per Khanna, J. (concurring):

[The Learned Judge also looked at the gross violation of the Basic Structure by the Article 329(4)
introduced by the 39th Amendment, and for that reason, he declared it as unconstitutional. In doing so,
he held:]
[...] I strike down clause (4) of Article 329A on the ground that it violates the principle of free
and fair elections which is an essential postulate of democracy and which in its turn is a part of
the basic structure of the Constitution inasmuch as (1) it abolishes the forum without providing for
another forum for going into the dispute relating to the validity of the election of the appellant and
further prescribes that the said dispute shall not be governed by any election law and the validity of
the said election shall be absolute and not consequently be liable to be assailed, and (2) it extinguishes
both the right and the remedy to challenge the validity of the aforesaid election.

[The Learned Judge did not go into the question as to whether an ordinary law can be held to have
violated the Basic Structure Doctrine. His reasoning was simple – he did not find any violation of free
and fair elections, an important element of the Basic Structure, by the impugned laws. Thus, the
question became redundant for him].

[He was also required to give some clarifications on the nature of the Basic Structure, and to clarify
certain aspects of the Kesavananda Bharati judgement. He opined:]

There was a controversy during the course of arguments on the point as to whether I have laid down
in my judgment in Kesavananda Bharati's case that fundamental rights are not a part of the basic
structure of the Constitution. As this controversy cropped up a number of times, it seems apposite that
before I conclude I should deal with the contention advanced by learned Solicitor General that
according to my judgment in that case no fundamental right is part of the basic structure of the
Constitution. I find it difficult to read anything in that judgment to justify such a conclusion. What
has been laid down in that judgment is that no article of the Constitution is immune from the
amendatory process because of the fact that it relates to a fundamental right and is contained in
Part III of the Constitution. It was also held that a constitution amendment under Article 368 does
not constitute "law" as mentioned in Article 13. [...]

[Mathew, Beg and Chandrachud, JJ. also provided important concurring opinions, with some inherent
differences between themselves, like Beg, J. not invalidating Article 329(4) altogether, but reading it
down to assume jurisdiction over the matter. The major difference in opinion between the Judges was
with respect to the inclusion of certain individual components into the Basic Structure, and also with
respect to application of the Basic Structure test to ordinary laws. While three of the majority judges
decided that ordinary laws cannot be subject to the Basic Structure test (and Khanna, J. refrained from
commenting on it since the issue was not germane to the case in his opinion), Beg, J., found no
limitation in testing ordinary laws on the bedrock of the Basic Structure].
 Comment: This case epitomises the uncertainties with the abstractness of the Basic Structure, insofar
as the Judges conflicted on the issue of inclusion of certain elements into the Basic Structure.
However, broadly speaking, there appears to be some consensus on some of these elements – rule of
law, democracy, judicial review etc.

On Basic Structure and the ‘Rights Test’

Case: I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861 (Coram: Sabharwal, C.J., Bhan,
Pasayat, B.P. Singh, Kapadia, Thakker, Balasubramanyan, Kabir, Jain, JJ.)

Certain Laws had been inserted into the Ninth Schedule of the Constitution. These laws had serious
implications on Fundamental Rights of the petitioners. Therefore, the Court was urged to look into
the constitutional validity of the amendments inserting these laws into the Ninth Schedule. In this
context, the Court set forth on reinvestigating the validity of the Waman Rao decision where it was
held that any Constitutional Amendment post-Kesavananda would be required to be scrutinised on
the touchstone of the Basic Structure Doctrine. In this context, the Court also decided to look into the
larger issue – “The fundamental question is, whether on and after 24th April, 1973 when basic
structures doctrine was propounded, it is permissible for the Parliament under Article 31B to
immunize legislations from fundamental rights by inserting them into the Ninth Schedule and, if so,
what is its effect on the power of judicial review of the Court?” Thus, the viability of the Ninth
Schedule itself was put to question. This case is also notable because of its evolution of the ‘Rights
Test’ – a test to determine Basic Structure conformity.

Per Sabharwal, C.J.:

[After a detailed account of the cases pertaining to the Amendment of the Constitution, the Learned
Chief Justice went into an analysis of the “Fundamentalness of the Fundamental Rights”, with respect
to the Basic Structure Doctrine and the Ninth Schedule Laws. In this context, he also did a critical
evaluation of the M. Nagaraj decision. He opined:]

The abrogation or abridgment of the fundamental rights under Chapter III have, therefore, to be
examined on broad interpretation, the narrow interpretation of fundamental rights chapter is a thing of
past. Interpretation of the Constitution has to be such as to enable the citizens to enjoy the rights
guaranteed by Part III in the fullest measure. [...]

The rights and freedoms created by the fundamental rights chapter can be taken away or
destroyed by amendment of the relevant Article, but subject to limitation of the doctrine of
basic structure. True, it may reduce the efficacy of Article 31B but that is inevitable in view of the
progress the laws have made post-Kesavananda Bharati's case which has limited the power of the
Parliament to amend the Constitution under Article 368 of the Constitution by making it subject to
the doctrine of basic structure.

[...] [T]he first aspect to be borne in mind is that each exercise of the amending power inserting laws
into Ninth Schedule entails a complete removal of the fundamental rights chapter vis-a-vis the laws
that are added in the Ninth Schedule. Secondly, insertion in Ninth Schedule is not controlled by any
defined criteria or standards by which the exercise of power may be evaluated. The consequence of
insertion is that it nullifies entire Part III of the Constitution. There is no constitutional control on
such nullification. It means an unlimited power to totally nullify Part III in so far as Ninth Schedule
legislations are concerned. The supremacy of the Constitution mandates all constitutional bodies to
comply with the provisions of the Constitution. It also mandates a mechanism for testing the validity
of legislative acts through an independent organ, viz. the judiciary.

While examining the validity of Article 31C in Kesavananda Bharati's case, it was held that the
vesting of power of the exclusion of judicial review in a legislature including a State legislature,
strikes at the basic structure of the Constitution. It is on this ground that second part of Article
31C was held to be beyond the permissible limits of power of amendment of the Constitution
under Article 368. If the doctrine of basic structure provides a touchstone to test the amending
power or its exercise, there can be no doubt and it has to be so accepted that Part III of the
Constitution has a key role to play in the application of the said doctrine. Regarding the status
and stature in respect of fundamental rights in Constitutional scheme, it is to be remembered that
Fundamental Rights are those rights of citizens or those negative obligations of the State which do
not permit encroachment on individual liberties. The State is to deny no one equality before the law.
The object of the Fundamental Rights is to foster the social revolution by creating a society
egalitarian to the extent that all citizens are to be equally free from coercion or restriction by the
State. By enacting Fundamental Rights and Directive Principles which are negative and positive
obligations of the States, the Constituent Assembly made it the responsibility of the Government to
adopt a middle path between individual liberty and public good. Fundamental Rights and Directive
Principles have to be balanced. That balance can be tilted in favour of the public good. The balance,
however, cannot be overturned by completely overriding individual liberty. This balance is an
essential feature of the Constitution. Fundamental rights enshrined in Part III were added to the
Constitution as a check on the State power, particularly the legislative power. Through Article 13, it
is provided that the State cannot make any laws that are contrary to Part III. The framers of the
Constitution have built a wall around certain parts of fundamental rights, which have to
remain forever, limiting ability of majority to intrude upon them. That wall is the 'Basic
Structure' doctrine. Under Article 32, which is also part of Part III, Supreme Court has been vested
with the power to ensure compliance of Part III. The responsibility to judge the constitutionality of all
laws is that of judiciary. Thus, when power under Article 31B is exercised, the legislations made
completely immune from Part III results in a direct way out, of the check of Part III, including that of
Article 32. It cannot be said that the same Constitution that provides for a check on legislative power,
will decide whether such a check is necessary or not. It would be a negation of the Constitution. In
Waman Rao's case, while discussing the application of basic structure doctrine to the first
amendment, it was observed that the measure of the permissibility of an amendment of a pleading is
how far it is consistent with the original; you cannot by an amendment transform the original into
opposite of what it is. For that purpose, a comparison is undertaken to match the amendment with the
original. Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law.

Indeed, if Article 31B only provided restricted immunity and it seems that original intent was only to
protect a limited number of laws, it would have been only exception to Part III and the basis for the
initial upholding of the provision. However, the unchecked and rampant exercise of this power, the
number having gone from 13 to 284, shows that it is no longer a mere exception. The absence of
guidelines for exercise of such power means the absence of constitutional control which results in
destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full
power of judicial review to determine the constitutional validity of such exercise. [...]

The fundamental rights have always enjoyed a special and privileged place in the Constitution.
Economic growth and social equity are the two pillars of our Constitution which are linked to the
rights of an individual (right to equal opportunity), rather than in the abstract. Some of the rights in
Part III constitute fundamentals of the Constitution like Article 21 read with Articles 14 and 15
which represent secularism etc. As held in Nagaraj, egalitarian equality exists in Article 14 read
with Article 16(4) (4A) (4B) and, therefore, it is wrong to suggest that equity and justice finds place
only in the Directive Principles.
The Parliament has power to amend the provisions of Part III so as to abridge or take away
fundamental rights, but that power is subject to the limitation of basic structure doctrine.
Whether the impact of such amendment results in violation of basic structure has to be
examined with reference to each individual case. Take the example of freedom of Press which,
though not separately and specifically guaranteed, has been read as part of Article 19(1)(a). If Article
19(1)(a) is sought to be amended so as to abrogate such right (which we hope will never be done), the
acceptance of respondents contention would mean that such amendment would fall outside the
judicial scrutiny when the law curtailing these rights is placed in the Ninth Schedule as a result of
immunity granted by Article 31B. The impact of such an amendment shall have to be tested on the
touchstone of rights and freedoms guaranteed by Part III of the Constitution. In a given case, even
abridgement may destroy the real freedom of the Press and, thus, destructive of the basic structure.
Take another example. The secular character of our Constitution is a matter of conclusion to be drawn
from various Articles conferring fundamental rights; and if the secular character is not to be found in
Part III, it cannot be found anywhere else in the Constitution because every fundamental right in Part
III stands either for a principle or a matter of detail. Therefore, one has to take a synoptic view of the
various Articles in Part III while judging the impact of the laws incorporated in the Ninth Schedule on
the Articles in Part III. 

[On Articles 14, 19 and 21 being part of the Basic Structure, the Learned Chief Justice observed:]

Dealing with Articles 14, 19 and 21 in Minerva Mills case, it was said that these clearly form part of
the basic structure of the Constitution and cannot be abrogated. It was observed that 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. These Articles stand on altogether different
footing. Can it be said, after the evolution of the basic structure doctrine, that exclusion of these rights
at Parliament's will without any standard cannot be subjected to judicial scrutiny as a result of the bar
created by Article 31B? The obvious answer has to be in the negative. If some of the fundamental
rights constitute a basic structure, it would not be open to immunise those legislations from full
judicial scrutiny either on the ground that the fundamental rights are not part of the basic
structure or on the ground that Part III provisions are not available as a result of immunity
granted by Article 31B. It cannot be held that essence of the principle behind Article 14 is not
part of the basic structure. In fact, essence or principle of the right or nature of violation is more
important than the equality in the abstract or formal sense. The majority opinion in Kesavananda
Bharati's case clearly is that the principles behind fundamental rights are part of the basic structure of
the Constitution. It is necessary to always bear in mind that fundamental rights have been considered
to be heart and soul of the Constitution. Rather these rights have been further defined and redefined
through various trials having regard to various experiences and some attempts to invade and nullify
these rights. The fundamental rights are deeply interconnected. Each supports and strengthens the
work of the others. The Constitution is a living document, its interpretation may change as the time
and circumstances change to keep pace with it.

[Therefore, the Learned Judge went on to hold:]

We are of the view that while laws may be added to the Ninth Schedule, once  Article 32 is
triggered, these legislations must answer to the complete test of fundamental rights. Every
insertion into the Ninth Schedule does not restrict Part III review, it completely excludes Part
III at will. For this reason, every addition to the Ninth Schedule triggers Article 32 as part of
the basic structure and is consequently subject to the review of the fundamental rights as they
stand in Part III.

[...]

Since power to amend the Constitution is not unlimited, if changes brought about by
amendments destroy the identity of the Constitution, such amendments would be void. That is
why when entire Part III is sought to be taken away by a constitutional amendment by the exercise of
constituent power under Article 368 by adding the legislation in the Ninth Schedule, the question
arises as to the extent of judicial scrutiny available to determine whether it alters the fundamentals of
the Constitution. [...]

If constituent power under Article 368, the other name for amending power, cannot be made
unlimited, it follows that Article 31B cannot be so used as to confer unlimited power. Article
31B cannot go beyond the limited amending power contained in Article 368. The power to amend
Ninth Schedule flows from Article 368. This power of amendment has to be compatible with the
limits on the power of amendment. This limit came with the Kesavananda Bharati's case.
Therefore Article 31-B after 24th April, 1973 despite its wide language cannot confer unlimited
or unregulated immunity. [...]

The doctrine of basic structure contemplates that there are certain parts or aspects of the
Constitution including Article 15, Article 21 read with Article 14 and 19 which constitute the
core values which if allowed to be abrogated would change completely the nature of the
Constitution. Exclusion of fundamental rights would result in nullification of the basic structure
doctrine, the object of which is to protect basic features of the Constitution as indicated by the
synoptic view of the rights in Part III.

[Finally, he contrasted this ‘Rights Test’ propounded by him with the ‘Essence of Rights’ Test
developed in M. Nagaraj. He held:]

There is also a difference between the 'rights test' and the 'essence of right test'. Both form part of
application of the basic structure doctrine. When in a controlled Constitution conferring limited
power of amendment, an entire Chapter is made inapplicable, 'the essence of the right' test as
applied in M. Nagaraj's case will have no applicability. In such a situation, to judge the validity
of the law, it is 'right test' which is more appropriate. [...] We are considering the situation where
entire equality code, freedom code and right to move court under Part III are all nullified by exercise
of power to grant immunization at will by the Parliament which, in our view, is incompatible with the
implied limitation of the power of the Parliament. In such a case, it is the rights test that is appropriate
and is to be applied.

[Thus, he observed:]

[T]he constitutional validity of the Ninth Schedule Laws on the touchstone of basic structure doctrine
can be adjudged by applying the direct impact and effect test, i.e., rights test, which means the form
of an amendment is not the relevant factor, but the consequence thereof would be determinative
factor.

[In conclusion, he held the following:]

(i) A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the
basic structure doctrine or it may not. If former is the consequence of law, whether by amendment of
any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in
exercise of judicial review power of the Court. The validity or invalidity would be tested on the
principles laid down in this judgment.

(ii) The majority judgment in Kesavananda Bharati's case read with Indira Gandhi's case, requires
the validity of each new constitutional amendment to be judged on its own merits. The actual effect
and impact of the law on the rights guaranteed under Part III has to be taken into account for
determining whether or not it destroys basic structure. The impact test would determine the validity
of the challenge.
 (iii) All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth
Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of
the basic or essential features of the Constitution as reflected in Article 21 read with Article
14, Article 19, and the principles underlying them. To put it differently, even though an Act is put in
the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the
ground that they destroy or damage the basic structure if the fundamental right or rights taken away
or abrogated pertains or pertain to the basic structure.

(iv) Justification for conferring protection, not blanket protection, on the laws included in the Ninth
Schedule by Constitutional Amendments shall be a matter of Constitutional adjudication by
examining the nature and extent of infraction of a Fundamental Right by a statute, sought to be
Constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article
21 read with Article 14 and Article 19 by application of the "rights test" and the "essence of the right"
test taking the synoptic view of the Articles in Part III as held in Indira Gandhi's case. Applying the
above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such a law(s)
will not get the protection of the Ninth Schedule. [...]

(v) If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be
open to challenge such law again on the principles declared by this judgment. However, if a law held
to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th
April, 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or
damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the
principles underlying thereunder.

Comment: This judgement, by striking at the very roots of the purpose with which the Ninth
Schedule was introduced into the Constitution, renders the Ninth Schedule almost redundant. It also
reinforces the pre-eminence of Articles 14, 19 and 21, by asserting that they form part of the Basic
Structure.

Conclusion

The cases discussed in this chapter give a clear indication that the constitutional amendments, howsoever
necessary they are, would not be completely immune from judicial scrutiny on the touchstone of the Basic
Structure. In fact, if one looks at the later cases involving the Basic Structure, it would clearly suggest that
the Basic Structure has gradually become stronger, more strongly embedded into our constitutional psyche.

A clear evidence of the gradual all-pervasiveness of the Basic Structure can be explained by a simple
example. If one looks at the Indira Nehru Gandhi case, it becomes evident that most of the Judges were
reluctant to use the Basic Structure Doctrine to test the constitutional validity of ordinary legislations. But
subsequently, it has been noticed that there have been many cases (for example, Madras Bar Association v.
Union of India, (2014) 10 SCC 1, also known as the National Tax Tribunal (NTT) case), where ordinary
laws (in some cases, not even legal amendments) have been tested on the bedrock of the Basic Structure.
This clearly goes on to show how much more powerful the Basic Structure has become in the last forty-four
years of its existence.