Amendments and basic structure theory

CONTENT – click to read particular chapter

CHAPTER 1- Introduction

CHAPTER 2- Parliamentary power to amend the Constitution

CHAPTER 3- Procedure to amend the Constitution of India as per given under Article 368 of Indian Constitution

CHAPTER 4- Do the power to amend the Constitution absolute or there is any restriction to this power?

CHAPTER 5- What is Basic Structure?

CHAPTER 6- Need of restrictions to this power

CHAPTER 7- Conclusion

Introduction

A Constitution is the basic legal document which gives a different identity to the country and also provides a structured form of ruling in the form of either presidential or Parliamentary to formulate the government.

It also provides the basic nature to a country which helps in various modes by clearly declaring it as either a federal country or an unitary form of country having single government and centralized powers where one government is ruling.

It can lead to give the country a totally different form as it has given in India by declaring it a quasi-federal country where the federation will be followed by a strong center in order to maintain the peace and order of the country.

In short, a Constitution is the base of any country and it is also called the supreme law of the land.

In other views we can also say that if this is such an important document then how can it be made at one time without changing it with the needs of the society?

By this view, we observe a different feature of the Constitution which is that the Constitution is a progressive document which allows changes in it with time and need of the society.

In India, our Constitution gives the power to amend to the Parliament under Article 368 of Indian Constitution in order to make it a progressive document which do not get older with the time and never stops the country from accepting new challenges and opportunities.

Parliamentary power to amend Constitution — Legalutility.com

Parliamentary power to amend the Constitution

Parliament is the central law making body which makes laws with respect to every change and need of the society.

The people who make laws for the whole India are elected by the public to serve for a fixed period of time, generally for five years as prescribed in our Constitution.

People in the legislative body hold the trust of public that whatever will be done will be in the best interest of the nation.

Provisions for amendment of the Constitution is made with a view to overcome the difficulties which may encounter in future in working of the Constitution.

No generation has monopoly of wisdom nor has it a right to place fetters on future generations to mould the machinery of government according to their requirements.

If no provisions were made for the amendment of the Constitution, the people would have recourse to extra Constitutional methods like revolution to change the Constitution. ¹

The framers of the Indian Constitution made the Indian Constitution quasi federal in nature,

so it was required to make a rigid Constitution but the excessive rigidity as it is in American Constitution it makes it very complicated and difficult to amend in emergency situations also in various situations where quick action is required, similar is the problem with Australia, Canada and Switzerland.

The nature of amending process envisaged by the framers of our Constitution can best be understood by referring the following observation of the late Prime Minister Pt. Nehru,

“while we want this Constitution to be solid and permanent as we can make it,

There is no permanence in the Constitution. There should be a certain flexibility.

If you make anything rigid and permanent you stop the nation’s growth, of living, vital, organic people……………in any event, we could not make this Constitution so rigid that it cannot be adopted to changing conditions.

When the word is in period of transition what we may do today may not be wholly applicable tomorrow”. But they were anxious to avoid flexibility of the extreme type. ²

In order to amend the Constitution there is a procedure which needs to be followed. Let’s discuss the procedure to amend the Constitution of India.

Procedure to amend the Constitution of India as per given under Article 368 of Indian Constitution

To ensure the flexible as well as the rigid nature of the amendment procedure, the procedure has been divided into three types as shown in the diagram.

There are three categories in which amendments can be divided

Amendments by simple majority- There are certain Articles in the Constitution which can be amended with a simple voting majority as it is required to pass ordinary bills. The amendments contemplated in Article 5, 169 and 239-A, can be made by simple majority. These Articles are specifically excluded from the purview of the procedure prescribed in Article 368.

Amendments by special majority-Articles of the Constitution which can be amended by special majority as laid down in Article 368. All Constitutional amendments, other than those referred above, come within this category and must be effected by a majority of the total membership of each House of Parliament as well as by a majority not less than 2/3 of the members of that House present and voting.

Amendments by special majority and ratification by States-Articles which require, in addition to the special majority mentioned above, ratification by not less than one half of the State legislatures. The States are given an important voice in the amendment of these matters. These are fundamental matters where States have important power under the Constitution and unilateral amendment by Parliament may vitally affect the fundamental basis of the system built up by the Constitution. This class of Articles consist of amendments which seek to make any change in the provisions mentioned in Article 368. The following provisions require such ratification by the States:

Election of the president- Articles 54 and 55.
Extent of executive powers of union and States- Articles 73 and 162, Articles 241 or 279A.
Articles dealing with judiciary, Supreme Court, High Court in the States and Union Territories- Articles 124 to 147,214 to 231,241.
Distribution of legislative powers between the center and the State- Articles 245 to 255.
Goods and Service Tax Council- Article 279A. ³
Any of the lists of the VIIth Schedule i.e. Union List, State List, Concurrent List.
Representation of States in Parliament IVth Schedule.
Article 368 itself i.e. the procedure to amend the Constitution. ⁴

Procedure to be followed:-

A bill to amend the Constitution may be introduced in either House of Parliament.

It must be passed by each house by a majority of the total membership to that House and by a majority of not less than two third of the members of that House present and voting.

When a bill is passed by both Houses it shall be presented to the president for his assent who shall give his assent to bill and thereupon the constitution shall stand amended ⁵.

But a bill which seeks to amend the provisions mentioned in Article 368 requires in addition to the special majority mentioned above the ratification by the one half of the States.

Amendments and theory of basic structure — Source Credit

Do the power to amend the Constitution absolute or there is any restriction to this power?

The power to amend the Constitution is invested in the Parliament but the question arises that whether this power to amend is absolute?

Can the whole Constitution be amended? Do the Parliament and A half of the States have the power to amend the fundamental features provided to every citizen by the Constitution? In various decided cases Supreme Court has answered these questions.

Starting with the first case which raised the question on first amendment by saying how can Parliament amend the constitution in such manner that it infringes the fundamental rights given in part III of the Constitution?

In Shankari Prasad v. Union of India ⁶ the validity of the Constitution (1st amendment) Act, 1951, which inserted inter alia, Articles 31-A and 31-B of the Constitution was challenged.

The amendment was challenged on the ground that it purported to take away or abridge the rights conferred by Part III which fell within the prohibition of Article 13(2) and hence was void.

It was argued that “State” in Article 12 included Parliament and word “Law” in Article 13(2), therefore, must include constitution amendment.

The Supreme Court, however, rejected the above argument and held that the power to amend the Constitution including the fundamental rights is contained in Article 368, and that the word “Law” in Article 13(2) includes only an ordinary law made in exercise of the legislative powers and does not include constitutional amendment which is made in exercise of constituent power.

Therefore, a constitutional amendment will be valid even if it abridges or takes away any of the fundamental rights. This was a unanimous decision of the bench of Supreme Court.

In the second case, named Sajjan Singh v. State of Rajasthan, ⁷ the validity of the Constitution (17th Amendment) Act was challenged.

The Supreme Court approved the majority judgment given in Shankari Prasad’s case and held that the words “amendment of the Constitution” means amendment of all the provisions of the Constitution.

Gajendragadkar, C. J. said that if the Constitution-maker intended to exclude the fundamental rights from the scope of the amending power they would have made a clear provision in that behalf.

Till the third case, the view of judges was changing, as we can see the first judgment was unanimous but the second one was in majority.

Hence there was a change in the view of judges. In the third case, I.C. Golaknath and ors. v. State of Punjab and ors. ⁸ he validity of the Constitution (17th Amendment) Act, 1964, which inserted certain State Acts in Ninth Schedule was again challenged.

The Supreme Court by a majority of 6 to 5 prospectively overruled its earlier decision in Shankari Prasad’s and Sajjan Singh cases and held that Parliament had no power from the date of this decision to amend part III of the Constitution.

So as to take away or abridge the fundamental rights.

There were certain highlighted points which gives reasoning to this judgment as also supported by Subba Rao, C.J.,

Rejection of the plea that the power to amend the Constitution was a sovereign power and they were outside of judicial review.
The power to amend the Constitution was derived from Article 245 read with Entry 97 of List I of the Constitution and not from Article 368 as the later tells the procedure only. Amendment is a legislative process.

The word “Law” mentioned in the Article 13(2) includes Amendments as well because it is a legislative process and it can be declared as void if violates the fundamental rights.

After the judgment in Golaknath case Parliament in order to remove the limitations brought 24thamendment 1971, in which a new clause (4) was added in Article 13 which provides that ‘nothing in this Article shall apply to any amendment of the Constitution made under Article 368.

In this amendment only, the Article 368 was amended as the heading of it was changed from Procedure for amendment of the Constitution to “Power of Parliament to amend the Constitution and the Procedure therefore”.

Also inserted a new sub-section (1) in the same Article stating “nothing with standing anything in this Constitution, Parliament may, in exercise of constituent power amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the Procedure laid down in this Article.

It substituted the words, “it shall be presented to the President who shall give his assent to the Bill and thereupon” for the words “it shall be presented to the President for his assent and upon such assent being given to the Bill”.

Other than this it also added clause (3) to Article 368 which provides that “nothing in Article 13 shall apply to any amendment made under this Article”.

The validity of the Constitution (24th Amendment) act, 1971, was challenged in Keshavnand Bharti v. State of Kerala, ⁹.

In this case the petitioners had challenged the validity of the Kerala Land Reforms Act, 1963.

But during the pendency of the petition the Kerala act was amended in 1971 and was placed in Ninth Schedule by 29th Amendment Act.

The petitioner were permitted to challenge the validity of Twenty Fourth, Twenty Fifth and Twenty Ninth amendment to the Constitution also.

In this case the question that what is the extent to amend the Constitution or there is no limitation at all.

On behalf of the union of India it was claimed that amending power was unlimited and short of repeal of the Constitution any change could be effected.

On the other hand, the petitioner contended that the amending power was wide but not unlimited. Under Article 368 Parliament cannot destroy the “basic feature” of the Constitution.

A special bench of 13 judges was constituted to hear the case which is the largest constitutional bench till the date.

In this case the doctrine of Basic Structure was given by the Supreme Court. The majority overruled the Golaknath judgment which denied Parliament the power to amend fundamental rights of citizens.

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Supreme Court decided the validity of each amendment respectively. The majority held that Article 368 even before the 24th amendment contained the power as well as the procedure of amendment, hence the 24th amendment does not enlarge the amending power of the Parliament.

Hence this amendment was held valid. The Court held that under Article 368 Parliament is not empowered to amend the basic structure or framework of the Constitution.

It was held that the first part of the 25th amendment is valid, but held that the second part, namely “no

such law, containing the declaration that it is for giving effect so such policy shall be called in question in any Court on the ground that it does not give effect to such policy” is invalid.

Six judges (Sikri, C.J., Shelat, Grover, Hegde, Reddy and Mukharjee JJ.) held that there are inherent or implied limitations on the amending power of the Parliament and Article 368 does not confer power to amend the Constitution.

So as to damage or destroy the essential elements or basic features of the Constitution.

Though the opinion of Khanna J. was different in the matter but they also said that the word amendment postulated that the old Constitution must survive without loss of indemnity and it must be retained through in the amended form and, therefore,

The power does not include the power to destroy or abrogate the basic structure or framework of the Constitution.

Hence, the judgement was passed by the majority of 7-6 that the basic structure cannot be amended by the parliament.

What is Basic Structure?

In various judgements, the Supreme Court has said that the Parliament doesn’t have the power to amend the basic features or basic structure of the Constitution.

The question now arises, what is the basic structure of the Constitution?

Although the judges enumerated certain essentials of the basic structure of the Constitution,

but they also made it clear that they were only illustrative and not exhaustive.

They will be determined on the basis of the facts in each case. In M. Nagraj v. Union of India, ¹⁰ 5 Judges Bench of the Supreme Court has explained the basic feature theory again in detail as follows.

“Basic structure is a systematic principles undelaying and connecting provisions of the Constitution.

They give coherence and durability to the Constitution. These principles are part of Constitutional law even if not expressly stated.

Theory of basic structure is based on the concept of Constitution identity. The main object behind the theory is continuity and within that continuity of identity.

In Keshavnand Bharti, the judges highlighted certain essentials of basic structure as follows:

Supremacy of the Constitution,
Republican and democratic forms of the Government,
Secular character of the Constitution,
Separation of power between the Legislature, the Executive and the Judiciary,
Federal character of the Constitution,
Sovereignty of the country,
Dignity of the individual secured by various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part V,
Unity and integrity of the nation,

In Indira Gandhi v. Raj Narayan ¹¹, the Supreme Court applied the theory of basic structure and struck down Cl. (4) of Article 329-A,which was inserted by the Constitution (39th Amendment)

Act, 1975 on the ground that it was beyond the amending power of the Parliament as it destroyed the ‘basic feature’ of the Constitution.

The amendment was made to validate with retrospective effect the election of the then Prime Ministers which was set aside by the Allahabad High Court. Khanna J.,

Struck down the clause on the ground that it violated the free and fair elections which was an essential postulate of democracy. Which in turn was a part of the basic structure of the Constitution;

Chandrachud J., struck down cls. (4) And (5) as unconstitutional on the ground that they were outright negation of the right of equality conferred by Article 14,

A right which is a basic postulate of our Constitution.

He held that these provisions were arbitrary and were calculated to damage or destroy the Rule of Law.

The Supreme Court has thus added the following features as basic features of the Constitution to the list of basic features laid down in the Keshavnand Bharti’s case:

Rule of Law.
Judicial Review.
Democracy, which implies free and fair Election.
The jurisdiction of the Supreme Court under Article 32, is also the basic feature of the constitution.

In Minerva Mills Ltd. v. Union of India, ¹² Supreme Court added more features as the basic features of the Constitution:

Limited power of Parliament to amend the Constitution;

Harmony and balance between fundamental rights and directive principles;

Fundamental rights in certain cases;

Power of judicial review in certain cases;

It was held that the independence of judiciary is part of the basic structure ¹³ in a case, where appointment of High Court judge was quashed on the ground that he was unqualified.

As per Jagdish Singh Khehar J.,

“The “basic structure” is truly a set of fundamental foundational principles, drawn from the provisions of the Constitution itself.

They are not fanciful principles carved out by the judiciary, at its own.” ¹⁴

Also it was held that if an ordinary legislation violates any provision of any Article,

t is technically sound to refer the Articles violated when an ordinary legislation is sought to be struck down but it does not lead to the inference that to strike down an ordinary enactment.

As being violative of “Basic Structure” would be wrong. ¹⁵

After the decision of the Supreme Court in Keshavnand Bharti and Indira Nehru Gandhi cases the Constitution (42nd Amendment) Act, 1976, was passed which added two new clauses, namely, clauses (4) and (5) to Article 368 of the Constitution.

In clause (4) the power to judicial review of amendments was removed from the Supreme Court by giving a proviso that “no constitutional amendment (including the provisions of Part III)

or purporting to have been made under Article 368 whether before or after the commencement of the Constitution (42nd Amendment) Act, 1976 shall be called in any court on any ground.

Clause (5) made clear that even the “basic structure” can be amended and hence removed any doubt on scope of amending power.

It declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition,

Variation or repeal of the provisions of the Constitution under this Article.

These two clauses were challenged and struck down in the case Minerva Mills v. Union of India ¹⁶ by the Supreme Court by 4 to 1 majority, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution.

Limited amending power is a basic structure of the Constitution. Since these clauses removed all the limitations on the amending power, it was destructive of the basic structure of the Constitution.

Need of restrictions to this power

In India there is supremacy of constitution and not the supremacy of Parliament.

This is in accordance with the intention of the framers who adopted written Constitution for the country.

Under the written Constitution there is a clear distinction between ordinary legislative power and constituent power (amending power) of Parliament.

Parliament cannot have unlimited power to amend as it is given in other countries in which the Parliament is Supreme and not the Constitution.

In India Parliament exists and derives its powers from the Constitution.

The Parliament is elected for a fixed period of time of five years this meant for specific purposes and hence the unlimited power to amend the Constitution cannot be given to the Parliament.

Conclusion

Hence we can say that the amending power of Parliament is wide enough to make our Constitution progressive but it doesn’t have the unlimited power to destroy the basic features of the Constitution.

In various judgements of the Supreme Court we see a progress in the view of judges as well.

In Shankari Prasad the Court unanimously said that the whole Constitution can be amended. Which was continued in the case of Sajjan Singh as well but the judgment was not unanimous but with a majority.

The case of Golaknath it was decided that the Parliament doesn’t have the power to amend the fundamental rights given under the Part III.

In the case of Keshavnand Bharti the judgment of Golaknath was overruled with the majority decision and the Doctrine of basic structure came into existence.

Also in Indira Nehru Gandhi case the doctrine of basic structure was given recognition and the amendment was struck down.

When the 42nd amendment tried to remove the limitations, it was struck down in the case of Minerva Mills. The Court in various judgments explained about the essentials of basic structure.

In the recent cases of M. Nagraj and Supreme Court Advocates-on-Record Association,

The Court explained the basic structure and what can be covered under the doctrine and what cannot.

References

Dr. J.N. Pandey: Constitutional law of India
Manupatra.com
Constitution of India, 1949
Livelaw.com
Sci.gov.in

Notes:

Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461 ↩
Dr. J. N. Pandey : Constitutional Law of India p. 787 (54th edition) ↩
Ins. By the Constitution (one hundred and first amendment) Act, 2016, section ↩
Dr. J. N. Pandey : Constitutional Law of India p. 788 (54th edition) ↩
The Constitution (24th amendment) Act, 1971 ↩
AIR 1951 SC 455 at p. 458 ↩
AIR 1965 SC 845 ↩
AIR 1967 SC 1643 ↩
AIR 1973 SC 1461 ↩
AIR 2007 SC 71 ↩
AIR 1975 SC 2299 ↩
AIR 1980 SC 1789 ↩
Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428, ↩
Supreme Court Advocates-on-Record Association v. Union of India, 2015 AIR SCW 5457 ↩
Supreme Court Advocates-on-Record Association v. Union of India, 2015 AIR SCW 5457 ↩
AIR 1980 SC 1789. ↩