Constitutional Law Project

Assignment on Amendment Of Fundamental Rights
CONSTITUTIONAL
LAW
ASSIGNMENT
ON
Amendment Of
Fundamental
Rights
Faculty: Dr. Asad Malik
Page 1
Contents
1. Acknowledgement
2. Introduction
3. Amendment of the Constitution
4. Meaning of Amendment
5. Modes of Amendment of the Constitution
6. Fundamental Rights
7. Importance of Fundamental Rights
8. Power of Parliament to Amend the Constitution
9. Principles Relating to Amendment of the Constitution
10.
Power of Parliament to Amend the Fundamental
Rights
11.
Controversy Surrounding the Amendability of
Fundamental Rights
12.
History of Amending Power of the Parliament in
regard to Fundamental Rights under Article 368
13.
Shankari Prasad v. Union of India
14.
First Stage:
a) Sajjan Singh v. State of Rajasthan
15.
Second Stage:
a) Golak Nath v. State of Punjab
b) Doctrine of Prospective Overruling
c) 24th Amendment Act, 1971
16.
Third Stage:
a) Kesavananda Bhararti v. State of Kerela
b) Indira Nehru Gandhi v. Raj Narain
c) 42nd Amendment Act, 1976
d) 42nd Amendment Act with reference to Article 368
17.
Fourth Stage:
a) Minerva Mills Limited v. Union of India
b) Waman Rao v. Union of India
c) S.P. Sampath Kumar v. Union of India
d) Raghunath Rao v. Union of India
e) L. Chandra Kumar v. Union of India
Page 2
f) M. Nagraj v. Union of India

g) I.R. Coelho v. State of Tamil Nadu
18.
Theory of Basic Structure
19.
Limitations on the Constituent Power of Amendment
20.
Conclusion
21.
Bibliography
Page 3
ACKNOWLEDGEMENT
I would like to express my heartfelt
gratitude and thanks to the various authors
whose books I have referred to while doing
my project and also the various sources of
information from where I have collected the
data for my assignment. I am duly indebted
to them. I am also indebted to the All India
Reports of the Supreme Court and the
judgments of various other Courts.
Last but not the least; I would also like to
thank my teacher, Dr. Asad Malik, for
providing us the opportunity to do such
projects and also for helping us with his
valuable suggestions.
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Page 5
AMENDMENT OF FUNDAMENTAL
RIGHTS
INTRODUCTION:The Constitution of India was adopted on 26 th November, 1949
and inaugurated on 26th January, 1950. It was framed by a
Constituent Assembly which consisted of members who were
elected by the Legislatures of the Provinces in 1946.
The framers of the Constitution drew profusely on the
Constitutions of the United States of America, Australia,
Canada and the United Kingdom. However, the Indian
Constitution though federal in form is not similar to the
Constitutions of the United States of America or Australia. It is
similar to the Constitution of Canada in some respects. The
Indian Constitution is described as Quasi-federal by
Professor Wheare, as a new kind of federalism to meet Indias
peculiar needs Granville Austin and as federal in times of
peace and unitary in times of war by Dr. Ambedkar. This
divergence of views among the constitutional scholars is due
to the fact that the framers did not follow any set pattern, but
created an instrument of Government which according to
them would enable the people of India to enjoy regional
autonomy in a manner consistent with the paramount national
interest. They also provided for Fundamental Rights to ensure
that the liberty of the citizens of India would be a reality and
not merely a promise. The inclusion of directive principles of
State Policy in the Constitution assures to the citizens a better
life wherein social and economic justice will be available. The
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goal which the framers of the Indian Constitution kept before

the nation is fully explained in the Preamble to the
Constitution. The Preamble represents the aspirations of the
people of India and the other provisions of the Constitution are
expected to enable the people of India to march towards the
cherished goal enshrined in the Preamble.
The objectives in the Preamble are a part of the basic
structure of the Constitution. Hence, the Preamble cannot be
amended so as to destroy the objectives.1
Amendment of the Constitution:Our first Prime Minister, Pandit Jawaharlal Nehru said, It
may be that the Constitution that this House may frame
may not satisfy free India. A free India will do what it
chooses.2 He also said that, While we want this
Constitution to be as 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 nations growth, of a 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 world is in a period of transition what
we may do today may not be wholly applicable tomorrow.
But the framers of our Constitution were also aware of the
fact that if the Constitution was too flexible, it would be a
playing of the whims and caprices of the ruling party. They
were, therefore, anxious to avoid flexibility of the extreme
1 Kesavananda Bharati v. State of Kerela, AIR 1973 SC 1461
2 Constituent Assembly Debates
Page 7
type. Hence, they adopted a middle course. It is neither too

rigid to admit necessary amendments, nor flexible for
undesirable changes.
The machinery of amendment 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 in motion, an
accumulation of force sufficient to explode it. The
Constitution-makers have, therefore, kept the balance
between the danger of having non-amendable Constitution
and a Constitution which is too easily amendable.3
Dr. Ambedkar said, One can, therefore, safely say that the
Indian Federation will not suffer from the faults of rigidity of
legalism. Its distinguishing feature is that it is a flexible
federation.4
George Bernard Shaw in his book The Intelligent Woman's
Guide to Socialism and Capitalism said, The institutions
under which we live are being changed continually by the
Parliament, because we are never satisfied with them.
Sometimes they are scrapped for new ones; sometimes
they are altered; sometimes they are done away with as
nuisances. The new ones have to be stretched in the law
courts to make them fit, or to prevent them fitting well if
the judges happen to dislike them.5
Meaning of Amendment:-
3 Keshavananda Bharati v. State of Kerela, AIR 1973 SC 1461

4 Dr. Ambedkar in Constituent Assembly Debates, Volume IX, Pg. 1569.
5 The Intelligent Womens Guide to Socialism and Capitalism by George
Bernard Shaw
Page 8
The term Amendment must be construed in its natural

meaning as altered, by addition, substitution and
omission.
Oxfords Dictionary of Law defines Amendment as,
changes made to legislation, for the purpose of adding to,
correcting or modifying the operation of the legislation. 6
The new Britannica Encyclopedia explains Amendment as
Amendment, in Government and Law, an addition to or
change of a constitution, statute or legislative bill or
resolution. An amendment must actually be accompanied
by some specified parliamentary or constitutional process.
7
Blacks Law Dictionary defines Amendment as, A formal

revision or addition proposed or made to statute,
Constitution, pleading, order, or other instrument. In
Parliamentary law, it means a motion that changes
another motions wording by striking out text, inserting or
adding text, or substituting text.8
The word Amendment should be interpreted in the
context of the legal and constitutional history of our Nation
and Constitution.
Modes of Amendment of the Constitution:There are two modes/types

Constitution. They are:
1) Formal
2) Informal
6 Oxford Dictionary of Law
7 Britannica Encyclopedia
8 Blacks Law Dictionary
Page 9
of
Amendment
of
the
Formal Mode of Amendment

The Constitution of India provides for its amendment
by way of Amendment Acts in a formal manner. For
the purpose of amendment, the various Articles of
the Constitution are divided into three categories.
The first category is out of the purview of Article 368
whereas the other two are a part and parcel of the
said Article. The various categories of amendment to
the Constitution can be summarized as follows:a) Amendment by Simple Majority:
As the name suggests, an article can be amended
in the same way by the Parliament as an ordinary
law is passed which requires simple majority. The
amendment contemplated under Articles 5-11
(Citizenship), 169 (Abolition or creation of
Legislative Councils in States) and 239-A (Creation
of local Legislatures or Council of Ministers or both
for certain Union Territories) of the Indian
Constitution can be made by simple majority.
These Articles are specifically excluded from the
purview of the procedure prescribed under Article
368.
b) Amendment by Special Majority:
Articles which can be amended by special majority
are laid down in Article 368. All amendments,
except those referred to above come within this
category and must be affected by a majority of
total membership of each House of Parliament as
well as two-third (2/3rd) of the members present
and voting.
c) Amendment by Special Majority and Ratification
by States:
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Articles which require, in addition to the special

majority mentioned above, ratification by not less
than 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 any 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
(1)Election of the President (Articles 54 & 55).
(2)Extent of the Executive power of the Union and
States (Articles 73 & 162).
(3)Articles dealing with Judiciary, Supreme Court,
High Court in the States and Union Territories
(Articles 124 to 147, 214 to 231 and 241).
(4)Distribution of Legislative powers between the
Centre and the State (Articles 245 to 255).
(5)Any of the Lists of the VIIth Schedule.
(6)Representation of States in Parliament. (IVth
Schedule).
(7)Article 368 itself.
d) Amendment under Article 368 of the Indian

Constitution.
Informal Mode of Amendment

The Informal mode of Amendment involves the
amendment of the Constitution through through
Judicial
Interpretation,
Conventions
and
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Constitutional usages. When an amendment or a law

made by the Parliament, if held unconstitutional by
the Supreme Court, can be struck down or repealed
by the Supreme Court on the grounds of
unconstitutionality.
FUNDAMENTAL RIGHTS:Part III of the Indian Constitution contains a long list of

Fundamental Rights. This Chapter of the Indian Constitution
has very well been described as the Magna Carta of India.9
There were no fundamental rights under any of the
Government of India Acts because they were founded on
the English doctrine of sovereignty of Parliament which was
repugnant to any limitations upon the authority of
Parliament, by way of safeguarding individual rights. But
nationalist opinion, since the time of the Nehru Report, was
definitely in favour of a Bill of Rights, because the
experience gained from the British regime was that a
subservient Legislature might occasionally help the
Executive in committing inroads upon individual liberty.
So, the Constitution of India embodied a number of
Fundamental Rights in Part III of the Constitution, which are
available not only against the Executive but are also
limitations upon the powers of the Legislature. But though
the model has been taken from the United States, the
Indian Constitution does not go so far, and rather effects a
compromise between the doctrines of Parliamentary
sovereignty and judicial supremacy. On the one hand, the
Parliament of India cannot be said to be sovereign in the
English sense of legal omnipotence, for, the very fact
that the Parliament is created and limited by a written
9 Fundamental Rights and Constitutional Remedies., Vol. 1 (1964), Pg-1
by V.G. Ram Chandran
Page 12
Constitution, enables our Parliament to legislate only

subject to the limitations and prohibitions imposed by the
Constitution. e.g., subject to the Fundamental Rights, the
distribution of legislative powers, etc.
On the other hand, the major portion of the Constitution is
liable to be amended by the Union Parliament by a special
majority, if, any case, the Judiciary proves too obtrusive.
The inclusion of a Chapter of Fundamental Rights i8n the
Constitution of India is in accordance with the trend of
modern democratic thought, the idea being to preserve
that which is an indispensable condition of a free society.
The aim of having a Declaration of Fundamental Rights is
that certain elementary rights, such as, right to life, liberty,
freedom of speech, freedom of faith and so on, should be
regarded as inviolable under all conditions and that the
shifting majority in Legislature of the country should not
have a free hand in interfering with these fundamental
rights.10
Articles 12 to 35 of the Constitution pertain to fundamental
rights. These rights are reminiscent of some of the
provisions of the Bill of Rights in the United States
Constitution but the former cover a much wider ground
than the latter.
The fundamental rights have been grouped under seven
heads. Right to Equality comprises Articles 14 to 18, of
which Article 14 is the most important. Right to Freedom
comprises Articles 19 to 22 which guarantee several
freedoms. Right against Exploitation consists of Articles 23
and 24. Right to Freedom of Religion is guaranteed by
Articles 25 to 28. Cultural and Educational Rights are
guaranteed by Articles 29 and 30. Right to Property is now
very much diluted and is secured to some extent by
Articles 30-A, 31-A, 31-B and 31-C. Right to Constitutional
10 A.K Gopalan v. State of Madras, AIR 1950 SC 27.
Page 13
Remedies is secured by Articles 32 to 35. These Articles

provide the remedies to enforce the fundamental rights
and of these, the most important is Article 32.
As the fundamental rights constitute by and large a
limitation on the government, the most important problem
which the courts have been faced with while interpreting
them has been to achieve a proper balance between the
rights of the individual and those of the state or society as
a whole, between individual liberty and social control. This
is a very difficult task indeed in these days of development
of the country into a social welfare state.
The fundamental rights are not all distinct and mutually
exclusive rights. Each freedom has different dimensions
and a law may have to meet the challenge under various
fundamental rights. Thus, a law depriving a person of hi
personal liberty may have to stand the test of Articles 14,
19 and 21 to be valid. Formerly, however, the courts
applied the Doctrine of Exclusivity of fundamental rights
and treated each right as a distinct and separate entity, but
this view has now undergone a change providing to the
courts a better leverage to test the validity of laws
affecting fundamental rights.
Importance of Fundamental Rights:Fundamental Rights were deemed essential to protect the

rights and liberties of the people against the encroachment
of the power delegated by them to their Government. They
were included in the constitution because they were
considered essential for the development of the personality
of every individual and to preserve human dignity. They
are limitations upon all the powers of the Government,
legislative as well as the executive and they are essential
for the preservation of public and private rights,
Page 14
notwithstanding the representative character of political

instruments.11
The writers of the constitution regarded democracy of no
avail if civil liberties, like freedom of speech and religion
were not recognized and protected by the State. According
to them, "democracy" is, in essence, a government by
opinion and therefore, the means of formulating public
opinion should be secured to the people of a democratic
nation. For this purpose, the constitution guaranteed to all
the citizens of India the freedom of speech and expression
and various other freedoms in the form of the fundamental
rights.
All people, irrespective of race, religion, caste or sex, have
been given the right to move the Supreme Court and
the High Courts for the enforcement of their fundamental
rights. It is not necessary that the aggrieved party has to
be the one to do so. Poverty stricken people may not have
the means to do so and therefore, in the public interest,
anyone can commence litigation in the court on their
behalf. This is known as "Public Interest Litigation". In some
cases, High Court judges have acted on their own on the
basis of newspaper reports.
These fundamental rights help not only in protection but
also the prevention of gross violations of human rights.
They emphasise on the fundamental unity of India by
guaranteeing to all citizens the access and use of the same
facilities, irrespective of background. Some fundamental
rights apply for persons of any nationality whereas others
are available only to the citizens of India. The right to life
and personal liberty is available to all people and so is the
right to freedom of religion. On the other hand, freedoms of
speech and expression and freedom to reside and settle in
any part of the country are reserved to citizens alone,
11 Hartado v. People of California, 28 Led 232, per Mathew, J.
Page 15
including non-resident Indian citizens. The right to equality

in matters of public employment cannot be conferred
to overseas citizens of India.
Fundamental rights primarily protect individuals from any
arbitrary state actions, but some rights are enforceable
against
individuals. For
instance,
the
Constitution
abolishes untouchability and also prohibits beggary. These
provisions act as a check both on state action as well as
the action of private individuals. However, these rights are
not absolute or uncontrolled and are subject to reasonable
restrictions as necessary for the protection of general
welfare. They can also be selectively curtailed.
Speaking about the importance of Fundamental Rights in
the historic judgment of Maneka Gandhi v. Union of
India, AIR 1978 SC 597, Justice Bhagwati observed,
These fundamental rights represent the basic values
cherished by the people of this country (India) since the
Vedic times and they are calculated to protect the dignity
of the individual and create conditions in which every
human being can develop his personality to the fullest
extent. They weave a pattern of guarantee on the basic
structure of human rights, and impose negative obligations
on the State not to
encroach on individual liberty in its
various dimensions.
The object behind the inclusion of the Chapter of
Fundamental Rights in Indian Constitution is to establish a
Government of law and not of man a governmental system
where the tyranny of majority does not oppress the
minority. In short, the object is to establish Rule of Law and
it would not be wrong to say that the Indian Constitution in
this respect goes much ahead than any other Constitutions
of the world. The object is not merely to provide security
and equality of citizenship of the people living in this land
and thereby helping the process of nation building, but also
and not less important to provide certain standards of
conduct, citizenship, justice and fair play. They were
Page 16
intended to make all citizens and persons appreciate that

the paramount law of the land has swept away privileges
and has laid down the paramount perfect equality between
one section of the community and another in the matter of
all those rights which are essential for the material and
more perfection of man.12
In M. Nagraj v. Union of India, AIR 2007 SC 71, the
Supreme Court speaking about the importance of the
fundamental rights held that fundamental rights are not
gift from the State to citizens. Part 3 does not confer
fundamental rights but confirm their existence and give
them protection. Individuals possess basic human rights
independently of any Constitution by reason of basic fact
that they are the human race. There rights are important
as they possess intrinsic values. Its purpose is to withdraw
certain subjects from the area of political controversy to
place them beyond the reach of majorities and officials and
to establish them as legal principles to be applied by the
Courts.
o The Six Fundamental Rights are as follows:1. Right to Equality (Articles 14 to 18)
2. Right to Freedom (Articles 19 to 22)
3. Right against Exploitation (Articles 23 and 24)
4. Right to Freedom of Religion (Articles 25 to 28)
5. Cultural and Educational Rights (Articles 29 and
30)
6. Right to Constitutional Remedies (Articles 32 to
35)
POWER OF PARLIAMENT
CONSTITUTION:-
TO
AMEND
12 Moti Lal v. State of Uttar Pradesh, AIR 1951 All. 257
Page 17
THE
The times & life of a Nation is not static. The Constitution

acts like a living organism and a Constitution drafted in one
era is often inadequate for another. There is a constant
change in political, social and economic conditions of a
nation. Hence it is the right of every generation to mould
its future.
A federal Constitution is a rigid Constitution. Hence the
procedure for its amendment is usually a complicated one.
The Indian Constitution however has provided for a simple
procedure for its amendment. Article 368 of the Indian
Constitution lays down the provisions of the Constitution
regarding amendment.
Article 368 of Part XX of the Indian Constitution deals with
the Amendment of the Constitution and the procedure
therefor. It states that:
368. [Power of Parliament to amend the Constitution
and procedure therefor.]13 [(1) Notwithstanding
anything in this Constitution, Parliament may in exercise of
its 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.]14
(2) An amendment of this Constitution may be initiated
only by the introduction of a Bill for the purpose in either
House of Parliament, and when the Bill is passed in each
House by a majority of the total membership of that House
and by a majority of not less than two-thirds of the
13 Subs. by the Constitution (24th Amendment) Act, 1971, Section 3(a),
for Procedure for amendment of the Constitution (w.e.f. 5-111971).
14 Ins. by the Constitution (24th Amendment) Act, 1971, Section 3(b)
(w.e.f. 5-11-1971).
Page 18
members of that House present and voting, [it shall be

presented to the President who shall give his assent to the
Bill and thereupon]15 the Constitution shall stand amended
in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any
change in
(a) article 54, article 55, article 73, article 162 or article
241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of
Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the
Legislatures of not less than one-half of the States by
resolutions to that effect passed by those Legislatures
before the Bill making provision for such amendment is
presented to the President for assent.
[(3) Nothing in article 13 shall apply to any amendment
made under this article.]16
17
[(4) No amendment of this Constitution (including the
provisions of Part III) made or purporting to have been
made under this article whether before or after the
commencement of section 55 of the Constitution (Forty-
15 Subs. by the Constitution (24th Amendment) Act, 1971, Section 3(c),

for certain words (w.e.f. 5-11-1971).
16 Ins. by the Constituion (24th Amendment) Act, 1971, Section 3(d)
(w.e.f. 5-11-1971).
17 Cls. (4) and (5) were ins. in Article 368 by Section 55 of the Constitution
(Forty-second Amendment) Act, 1976. This section has been declared invalid
by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and
Others, (1980 ) 3 S.C.C. 625.
Page 19
second Amendment) Act, 1976 shall be called in question

in any court on any ground.]
[(5) For the removal of doubts, it is hereby declared that
there shall be no limitation whatever on the constituent
power of Parliament to amend by way of addition, variation
or repeal the provisions of this Constitution under this
article.]
A Bill to amend the Constitution may be introduced in
either house of the Parliament. It must be passed by each
house by a majority of the total membership of that house
and by a majority of not less than 2/3rd of the members
present and voting. Thereafter, the bill is presented to the
President for his assent who shall give his assent and
thereupon the Constitution shall stand amended. In case,
ratification by state is required it has to be done before
presenting it to the President for his/her assent.
Article 368, was first amended by the Constitution

(Twenty-fourth Amendment) Act, 1971, w.e.f. 5-81971, in order to counteract the effects of the
majority decision of the Supreme Court in Golak
Nath case.18
But even such elaborate amendments proved
ineffective to deter the Supreme Court from
invalidating a Constitution Amendment Act on a
substantive ground, as happened in Keshavananda 19
and Rajnarains20 cases.
Hence, by the 42nd Amendment Act, Clause (4) and
Clause (5) were inserted, to make it clear that on no
ground (not even on the ground of procedural non-
18 Golak Nath v. State of Punjab, AIR 1967 SC 1643

19 Keshavananda Bharati v. State of Kerela, AIR 1973 SC 1461
20 Indira Gandhi v. Rajnarain, AIR 1975 SC 2299
Page 20
compliance with the requirements of Article 368,

shall any be competent to invalidate any Constitution
Amendment Act.21
Amendment of the Constitution: The power to amend
cannot be equated with the power to frame the
Constitution, which by no limitations or constraints. It
is primary power, a real plenary power.22
Effects of Amendments: The net effects of these
successive amendments on the 1949 provision may
be explained below:
Article 368 as it stood in 1949:
1) It was not obligatory for the President to give his
assent to a Bill for amendment of the Constitution.
2) What was meant by amendment was not
explained.
3) Relying on the word Bill, it was held in Golak
Naths case that a Constitution Amendment Act,
though passed in exercise of the power conferred
by Article 368, was a law subject to Article 13(2).
4) Though the amending power conferred by Article
368 was not subject to any express limitations, it
was held in Keshavananada and Rajnarains cases
that it was subject to the procedural conditions
imposed by Article 368, and to the implied
limitation that the power to amend could not alter
the basic features of the Constitution or to make
a new Constitution altogether.
21 But even this addition has been foiled by the Supreme Court in
Miverva Milla v. Union of India, AIR 1980 SC 1789, holding Clause (4)
and Clause (5) as void, on the ground that this amendment sought to
totally exclude judicial review, which was basic feature of the
Constitution.
22 I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861: (2007) 2 SCC 1.
Page 21
Article 368 as it stands after 1976:

1) It has been made obligatory for the President to
give his assent to a Bill passed under Article 368
[Clause (2), as amended by the 24 th Amendment
Act, 1971], though his power to veto other Bills
remains intact, subject, of course, to ministerial
advice under Article 74(1), as amended by the
42nd Amendment Act.
2) By inserting Clause (1), the 24th Amendment Act,
1971, has made it clear that amendment would
include addition, variation or repeal of any
provision of the Constitution.
3) The 24th Amendment Act, 1971 repelled the theory
that a Constitution Amendment Act passed under
the exercise of power conferred by Article 368 was
a law subject to Article 13(2). The 24 th
Amendment Act repelled this theory by inserting
Clause (4) in Article 13 and Clause (3) in Article
368.
4) The 42nd Amendment Act inserted Clause (5) to
say that there are no limitations whatever to the
power conferred by Article 368, and Clause (4) to
say that a Constitution Amendment Act shall be
immune from judicial review altogether, whether
on substantive or procedural grounds. But this
amendment has been annulled by the Supreme
Court in Minerva Mills case. By inserting Clause (4)
and (5) to Article 368, the Parliament tried to repel
the theory that an amendment could not alter the
basic features of the Constitution.
Principles relating to Amendment of the Constitution:(a) Subject to the special procedure laid down in Article
368, our Constitution vests constituent power upon the
Page 22
ordinary Legislature of the Union, i.e., the Parliament

and there is no separate body for amending the
Constitution, as exists in some other Constitutions.23
(b)Subject to the provisions of Article 368, Constitution
Amendment Bills are to be passed in the same way as
ordinary Bills.
(c) Parliament may, by a Constitution Amendment Act,
amend Article 368 itself.
(d)While previously it was held that the courts are
competent to examine the validity of a Constitution
Amendment Bill to see whether the provisions of Article
368 have been complied with or violated, Clause (4) and
Clause (5), as inserted by the 42 nd Amendment Act,
1976, intended to preclude judicial review even on that
ground; but these Clauses have been declared
unconstitutional by the Supreme Court.
POWER OF PARLIAMENT
FUNDAMENTAL RIGHTS:-
TO
AMEND
THE
Part III of the Indian Constitution contains the Chapter on

Fundamental Rights.
Article 12 states that:12.
Definition. In this Part, unless the
context otherwise requires, the State includes
the Government and Parliament of India and the
Government and the Legislature of each of the
States and all local or other authorities within the
territory of India or under the control of the
Government of India.
23 Shankari Prasad v. Union of India, (1952) SCR 89; Sajjan Singh v.
State of Rajasthan, AIR 1965 SC 845 restored by 24 th Amendment
Act; and Clause (5) inserted by the 42nd Amendment Act, 1976.
Page 23
Article 13 states that:13.

Laws
inconsistent
with
or
in
derogation of the fundamental rights.
(1)All laws in force in the territory of India
immediately before the commencement of
this Constitution, in so far as they are
inconsistent with the provisions of this Part,
shall, to the extent of such inconsistency, be
void.
(2)The State shall not make any law which
takes away or abridges the rights conferred
by this Part and any law made in
contravention of this clause shall, to the
extent of the contravention, be void.
(3)In this article, unless the context otherwise
requires,
(a) law includes any Ordinance, order,
bye-law,
rule,
regulation,
notification,
custom or usage having in the territory of
India the force of law;
(b) laws in force includes laws passed or
made by a Legislature or other competent
authority in the territory of India before the
commencement of this Constitution and not
previously repealed, notwithstanding that
any such law or any part thereof may not be
then in operation either at all or in particular
areas.
24
[(4) Nothing in this article shall apply to any

amendment of this Constitution made under article 368.]
24 Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971,

Section 2 (w.e.f. 5-11-1971)
Page 24
State: Article 12 clarifies that the term State occurring in

Article 13 (2), or any other provision concerning
fundamental rights, has been given an expansive meaning.
According to Article 12, the state includes the
Government and Parliament of India, the Government and
the Legislature of a State, and all local or other authorities
within the territory of Indi, or under the control of the
Central Government. The actions of any of these organs
can be challenged before the courts as violating
fundamental rights. Article 12 has given an extended
significance to the term state.
Justiciability of Fundamental Rights : Article 13 gives
teeth to the fundamental rights and makes them
justiciable. The effect of Article 13 is that all preConstitution laws shall be void to the extent of their
inconsistence with the fundamental rights. According to
Article 13(2), the state shall not make any law which takes
away or abridges the fundamental rights; and a law
contravening a fundamental rights is, to the extent of the
contravention, void. Most of the fundamental rights are
claimed against the state and its instrumentalities and not
against private bodies.25 The two important concepts used
in these provisions is state and law.
Law: The term law in Article 12 has been given a wide
connotation so as to include any ordinance, order, bye-law,
rule, regulation, notification, custom or usage having the
force of law. Thus, not only a piece of legislation, but any of
the things mentioned here can be challenged as infringing
a fundamental right. Accordingly, a resolution passed by a
State Government under Fundamental Rule 44 of the
State,26 a government notification under the Commissions
25 P.D. Shamdasani v. Central Bank of India, AIR 1952 SC 59.

26 Madhya Pradesh v. Mandawar, AIR 1954 SC 493.
Page 25
of Inquiry Act setting up a commission of inquiry, 27 a

notification28 or an order29 under a statute, an
administrative order,30 a custom or usage,31 bye-laws of a
municipal or statutory body,32 regulations made by a
statutory corporation like the Life Insurance Corporation, 33
have been held to be law under Article 13. The bye-laws
of a co-operative society framed under a co-operative
societies act do not fall within the purview of Article 13. 34
Though a law as such may not be invalid, yet an order
made under it can still be challenged as being inconsistent
with a fundamental right because no law can be presumed
to authorize anything unconstitutional.35 Article 13 is a key
provision as it makes fundamental rights justiciable. It
confers a power, and imposes an obligation, on the courts
to declare a law void if it is inconsistent with a fundamental
27 Dalmia v. Justice Tendolkar, AIR 1958 SC 538
28 Madhubhai Amathalal Gandhi v. Union of India, AIR 1961 SC 21.
29 Pannalal Binjraj v. Union of India, AIR 1957 SC 397.
30 Balaji v. Mysore, AIR 1963 SC 649
31 Sant Ram v. Labh Singh, AIR 1965 SC 314.
32 Tahir v. District Board, AIR 1954 SC 630.
33 Bhagatram, supra, 462; Hirendra Nath Bakshi v. Life Insurance
Corporation, AIR 1976 Cal.
34 Co-op. Credit Bank v. Industrial Tribunal, AIR 1970 SC 245.
35 Narendra Kumar & Others v. Union of India, AIR 1960 SC 430.
Page 26
right. The Supreme Court has figuratively characterized this

role of the judiciary as that of a sentinel on the qui vive.
Doctrine of Severability: According to Article 13, a law is

void only to the extent of the inconsistency or
contravention with the fundamental right. This means that
an Act may not be void as a whole; only a part of it may be
void and if that part is servable from the rest then the rest
of the Act may continue to stand and remain operative. The
Act will then be read as if the invalid portion was there. If,
however, it is not possible to separate the valid from the
invalid portion, then the whole of the statute will have to
go.36
o CONTROVERSY
AMENDABILITY
RIGHTS:-
SURROUNDING
THE
OF
FUNDAMENTAL
The elementary question in controversy has been

whether Fundamental Rights are amendable so as to
take away the basic rights guaranteed by the
Constitution. Another controversy deals with the extent,
scope and authority of Parliament to amend
Constitution. The answer has been given by the
Supreme Court from time to time, sometimes under
immense pressure. The question whether fundamental
rights can be amended under Article 368 came for
consideration of the Supreme Court in Shankari
Prasad v. Union of India.37 In this case the validity of
36 Kameshwar Pd. v. State of Bihar, AIR 1962 SC 1166; Madhya
Pradesh v. Ranojirao Shinde, AIR 1968 SC 1053.
37 AIR 1951 SC 455 at pg. 458.
Page 27
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 the term State in Article 12
included Parliament and the 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 any of the fundamental
rights.
History of Amending Power of the Parliament in

regard to Fundamental Rights under Article 368:A review of judgments of the Supreme Court indicates that
the Court interpreted the provisions of the Constitution
relating to the amendment of the Constitution differently at
different times. From Shankari Prasads case to Sajjan
Singhs case,38 Golak Naths case39 to Kesavananda
Bharatis case40, Minerva Mills case;41 we can divide the
38 AIR 1965 SC 845.
39 AIR 1971 SC 1643.
40 AIR 1973 SC 1461.
41 AIR 1980 SC 1789.
Page 28
entire chronology of the history of these cases and their

decisions thereof into various Stages.
The important cases related with Amendment of
Fundamental Rights, that I will be referring to in my
assignment, in chronological order are as follows:1) Shankari Prasad v. Union of India, AIR 1951 SC 455
2) Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
3) Golak Nath v. State of Punjab, AIR 1971 SC 1643
4) Kesavananda Bharati v. State of Kerela, AIR 1973 SC
1461
5) Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
6) Minerva Mills Limited v. Union of India, AIR 1980 SC
1789
7) Waman Rao v. Union of India, AIR 1981 SC 271
8) S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386
9) Raghunath Rao v. Union of India, AIR 1993 SC 1267
10) L. Chandra Kumar v. Union of India, AIR 1997 SC 1125
11) M. Nagraj v. Union of India, AIR 2007 SC 71
12) I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 8617
First Stage:From Shankari Prasads case to Sajjan Singhs case, the

Supreme Court held that Parliament has unlimited power of
amending the Constitution and an amendment of the
Constitution was not a law within the meaning of Article
13. This meant that there were no limitations on the power
of Parliament to amend the Constitution and the Supreme
Court had no authority to consider the legality or otherwise
of an amendment of the Constitution. Only two judges in
the Sajjan Singh case expressed doubts about this
proposition.
In Sajjan Singh v. State of Rajasthan, AIR 1965 SC

845, the validity of the Constitution (17th Amendment) Act,
1964 was challenged. The Supreme Court approved the
Page 29
majority judgment given in Shankari Prasads 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 makers
intended to exclude the fundamental rights from the scope
of the amending power they would have made a clear
provision in that behalf.
Doubts expressed in Sajjan Singhs Case:

For more than a decade, controversy seemed to have been
settled; but in Sajjan Singh v. State of Rajasthan42,
certain doubts were expressed by Hidayatullah and
Madholkar, JJ.
Hidayatullah, J said: But I make it clear that I must not be
understood to have subscribed to the view that the word
law in Article 13(2) does not control Constitutional
amendments. I reserve my opinion on that case for I
apprehend that it depends on how wide is the word law in
that Article.
Madholkar, J. also made the following observations : In
view of these considerations and those mentioned by my
learned brother Hidayatullah I feel reluctant to express a
definite opinion on the question whether the word law in
Article 13(2) of the Constitution excludes an Act of
Parliament amending the Constitution and also whether it
is competent to parliament to make any amendment at all
to Part III of the Constitution.
Second Stage:
In Golak Nath v. State of Punjab, AIR 1971 SC 1643,

the validity of the Constitution (17th Amendment) Act,
1964, which inserted certain State Acts in Ninth Schedule
42 A.I.R. 1965 SC 845.
Page 30
was again challenged. The Supreme Court laid down by a

majority (six out of eleven Judges) that there was no
distinction between legislative and constituent power. The
Supreme Court prospectively overruled its earlier decision
in Shankari Prasads case and Sajjan Singhs case 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 fundamental rights. Hence, an amendment of the
Constitution that abridged or curtailed any of the
fundamental rights was subject to Article 13(2). The Court
laid down that Parliament had no power to curtail or
abridge fundamental rights. The Court also laid down that
Article 368 merely laid down the procedure for an
amendment of the Constitution, the power to amend was
to be traced to the residuary power of legislation. The Court
however did not declare the amendment made to the
Constitution up to the date of the judgment (i.e. 27-2-1967)
as void, in order to avoid the disastrous effect of the
decision. Hence, it introduced the Doctrine of prospective
overruling.
In this case three Writ Petitions (one against State of

Punjab and two against State of Mysore) were filed to
challenge the validity of certain land reforms as well as of
the Constitution (17th Amendment) Act, 1964 on the ground
of violation of fundamental rights under Articles 14, 19 and
31.
The main ground in favour of un-amendability of
fundamental rights was based on the construction of
Articles 13(2) and 368 of the Constitution. The Court held
that it is true that the Constitution does not directly prohibit
amendment of fundamental rights but the word law in
Article 13(2) includes Constitutional law and Constitutional
amendments being law cannot take away or abridge
fundamental rights in the face of express prohibition in
Page 31
Article 13(2). If fundamental rights are abridged or taken

away by amendment, this could be possible only by a
Constituent Assembly, which maybe convoked by
Parliament by enacting a law under residuary powers.
All the three amendments challenged in the Writ Petitions
were upheld by the Court on the ground that they were
made on the basis of earlier decisions of the Supreme
Court and holding them invalid after such a long time
would create chaos and would unsettle the conditions in
the country. Since the land reform legislations challenged
were protected by the Constitution (17th Amendment) Act
and the amendment was held valid, the Court held that the
legislation in question could not be challenged and
dismissed the petitions. However, the Court applied the
doctrine of prospective overruling and held that in future
Parliament could not abridge fundamental rights by
Constitutional amendments or legislation.
Doctrine of Prospective Overruling (Meaning):The basic meaning of prospective overruling is to construe

an earlier decision in a way so as to suit the present day
needs, but in such a way that it does not create a binding
effect upon the parties to the original case or other parties
bound by the precedent. The use of this doctrine overrules
an earlier laid down precedent with effect limited to future
cases and all the events that occurred before it are bound
by the old precedent itself. In simpler terms it means that
the court is laying down a new law for the future.
24th Amendment Act, 5th November, 1971:
Page 32
Golak Naths case created a lot of difficulties and as a

result the Parliament enacted 24th Amendment Act,
1971 whereby it changed the old heading of Article
368 Procedure for Amendment of the Constitution
to a new heading Power of the Parliament to

Amend
the
Constitution
and
Procedure
Therefor.
This Act made it clear that a constitution amendment
is not law as mentioned in Article 13. Article 368
was amended with a view to ensuring that Parliament
has power to amend any provisions of the
Constitution. This was done to negative the effects of
the Golak Naths judgment. The Supreme Court in
the Kesavananda Bharati case upheld the validity of
the amendment.
To the benefit of the Legislators, the 24th
Amendment Act, 1971 restored and extended the
scope of power of Parliament to amend the
Constitution by adding the words amend by way of
addition or variation or repeal any provision in
accordance with the provisions laid down in this
Article Further, the amendment provided that
Nothing in Article 13 shall apply to any amendment
made under this article by way of an addition of
Clause 3 to Article 368.
Third Stage:
Page 33
The validity of the Constitution (24 th Amendment)

Act, 1971 was challenged in Kesavananda Bharati
v. State of Kerela, AIR 1973 SC 1461, popularly
known as the Fundamental Rights case. In this
case, His Holiness Swami Kesavananda Bharti Sri
Padagalwaru was the head of a Math in Kerela. Land
reform legislation in Kerela had affected the property
of his religious institution. Subsequently, these
changes in the Land Reform Law were placed in the
Ninth Schedule by the 29th Amendment. The
petitioners had challenged the validity of the Kerela
Page 34
Land Reforms Act, 1963. But during the pendency of

the petition, the Kerela Act was amended in 1971 and
was placed in the Ninth Schedule by the 29 th
Amendment Act, 1972. The petitioner was permitted
to challenge the validity of the 24 th Amendment Act,
25th Amendment Act and also the 29 th Amendment
Act. The question involved was as to what was the
extent of the amending power conferred by Article
368 of the Constitution? 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 (the
largest bench by far in our country) was constituted
to hear the case. The decision in this case would
completely alter the constitutional landscape of India
for generations to come.
This decision continues to be one of the longest
reported judgement and covers 594 pages of All India
Reporter. The 13 Judges gave elaborate reasons and
analysing them critically is extremely strenuous.
Several propositions have been repeated again and
again.
The Court by majority overruled the Golak Naths
case which denied Parliament the power to amend
fundamental rights of citizens. The majority held that
Article 368 even before the 24 th Amendment
contained power as well as the procedure of
amendment. The 24th Amendment merely made
explicit what was implicit in the unamended Article
368-A. The 24th Amendment Act does not enlarge the
amending power of the Parliament. The 24th
Amendment is declaratory in nature. It only declares

the true legal position as it was before that
amendment, hence it is valid. The Court laid down
that:
(1) Article 368 does not empower Parliament to
amend the basic structure of the Constitution.
(2) The 24th Amendment Act is valid.
(3) The first part of Section 3 of the 25 th Amendment
Act is valid. The part of the Section, namely, no such
law containing the declaration that is for giving effect
to such policy shall be called in question in any court
on the ground that is does not give effect to such
policy, is invalid.
(4) The Court also upheld the validity of other
provisions which related to an amendment of the
Constitution and which were challenged in the case.
In this case, it was urged that there are implied
limitations on the amending power of Parliament.
However, the majority did not uphold this plea. Only
five out of the thirteen judges subscribed to the view
of implied limitations.
The Court also laid down that the Parliament has
power to amend even the provisions relating to
fundamental rights. For, the majority did not hold
that fundamental rights are a basic feature of the
Constitution; but the Parliament has no power to
amend the Constitution so as to affect the basic
structure of the Constitution.
It was also held in this case that the Supreme Court
may strike down even an amendment of the
Constitution.
o The Decision in Kesavananda Bharati case was also

followed in the famous case of Smt. Indira Nehru
Gandhi v. Raj Narain, AIR 1975 SC 2299, also
known as the Election case. In this case, the election
Page 35
o
o
o
o
o
of Mrs. Indira Gandhi was set aside by the Allahabad

High Court on grounds of corrupt practices. Instead of
gracefully waiting for the outcome of her appeal
before the Supreme Court, the Parliament passed the
39th Amendment Act, 1975 on 10th August 1975,
taking the election of President, Vice President, and
Prime Minister outside the pale of Judicial Review. The
amendment was tailor made to nullify the decision of
the Allahabad High Court. The constitutional validity
of this amendment came up for consideration in the
aforesaid Indira Gandhis case. Article 329-A(4) was
held
to
be
constitutionally
invalid.
Several
observations regarding the law relating to elections
are not relevant here. As regards to basic structure,
Chandrachud J. who was part of the majority, referred
to the five aspects that would constitute the basic
structure:
Sovereign democratic republic status
Equality of status in opportunity of an individual
Rule of law
Secularism and freedom of conscience and religion
Judicial review
The Supreme Court struck down Clause (4) of Article

329-A on various grounds. Ray, C.J. pointed out: Clause
(4) of Article 329-A..has passed a declaratory
judgment and not law. Legislative judgment in clause (4)
is an exercise of judicial powerthe validation of
election cannot rest on clause (4). Mathew, J. held that
democracy is basic feature of the Constitution and this
basic feature has been damaged by clause (4). Hence
the clause was invalid. An election dispute can be
resolved only by a tribunal and not by a legislature.
This judgment had an extensive discussion on the basic
structure theory and to what extent it would apply to the
Page 36
ordinary law making powers of Parliament. This

judgment is also important from the point of view of the
meaning of the expression constituent power. The
power exercised by a Constituent Assembly in framing a
new Constitution is a plenary power and is not subject to
any limitations. But the constituent power exercised by
a body empowered to amend the Constitution is subject
to limitations.
After the judgments of Kesavananda Bharati case and
Indira Gandhi Election case were delivered, Parliament
amended the Constitution in 1976 (Forty-second
Amendment) Act and added the clauses (4) and (5) to
Article 368.
42nd Amendment Act, 18th December, 1976:
Page 37
This was the most extensive Amendment Act. It

contained 55 Sections and sought to amend a
number of Articles. It proved to be a most
controversial amendment as it was attacked more
from the point of view of political affiliations rather
than purely legal objections. There was a national
debate on the proposals contained in this
amendment. As the amendment was undertaken
during the period of emergency when the freedom of
expression was subject to many restrictions and a
number of members of Parliament from opposition
parties were in prison, it was denounced by many.
The principles on which the amendment was based
were the sovereign powers of Parliament to amend
the Constitution, wide powers to the Union
Government with a view to maintaining law and order
in the country, curtailment of the power of the
judiciary with the purpose of taking away the

jurisdiction of the Supreme Court as regards deciding
the validity by a constitutional amendment, avoiding
the interpretation of constitutional provisions. This
amendment became one of the topics of general
election to Parliament at the end of the emergency
period.
42nd Amendment Act with reference to Article

368
Encouraged by the decision in Kesavananda
Bharatis43 case, Clauses (4) and (5) were inserted
in Article 368 by the 42nd Amendment Act, 1976, by
Mrs. Gandhis Government, to control another part of
the Kesavandanda decision that though the
Fundamental Rights constituted no limitation on the
amending power, there were other implied
limitations, namely, that the power to amend could
not be used to alter the basic features of the
Constitution or to make a new Constitution. This
latter view in Kesavanandas case was intended to be
superseded by Clause (4)-(5) which say that:
(a) there are no limitations, express or implied, upon
the amending power under Article 368 (1), which
is a constituent power, and that
(b)a Constitution Amending Act would not, therefore,
be subject to judicial review, on any ground.
But the Constitution (42nd Amendment) Act, 1976, in

so far as it inserted Clauses (4) and (5) in Article 368,
has been held to be void by the Supreme Court in the
Minerva Mills case.44 The Supreme Court held the new
clauses to be void on the ground that this
43 Kesavananda Bharati v. State of Kerela, AIR 1973 SC 1461.
Page 38
amendment sought to totally exclude judicial review,

which was basic feature of the Constitution.
A question may be asked here, can we say that an

amendment made by Parliament is an amendment
made by people? The 42nd amendment was intended
to achieve this object. It was argued that the
amending body under Article 368 has the full
constituent power. In other words, the Parliament
acts in the same capacity as the Constituent
Assembly when exercising the power of amendment
under Article 368. It is submitted that this proposition
is totally wrong. The reasons are:1) Firstly, an amendment made by Parliament cannot
be said to be an amendment made by the people.
There is a distinction between the power of the
people to amend a Constitution and the power of
the legislature to amend it. It is true that
Parliament represents the will of the people. But it
is not equally true that whatever Parliament does
is usually approved by the people. The Lok Sabha
election held in 1977 is a good example to show
that the representatives of the people in
Parliament do not always reflect the peoples will.
Whatever was done during the emergency was
done in the name of the people. But from the
election result it was clear that they had rejected
all what had been in their name by the
representatives. Therefore it is not possible to
derive support for an unfettered amending power
from the theory that their representatives of the
people always reflect the peoples will. The theory
of basic structure propounded by the Supreme
Court in Kesavanandas case is correct and will act
44 Minerva Mills v. Union of India, AIR 1980 SC 1789.
Page 39
Page 40
as a safety valve against arbitrary use of

amending powers. In Australia out of 30
amendments proposed by the absolute majority of
Australian Parliament only four were accepted and
26 were rejected by the people.
2) Secondly,
the
assertion
of
parliamentary
supremacy is based on wrong nations. The
supremacy of the parliament is the main
characteristic
of
the
British
Constitution,
Parliamentary
supremacy
means
that
the
Parliament has unlimited law making power. It
includes both the constituent powers and ordinary
law making powers. Parliament can change the
Constitution by passing an ordinary law. It means
that there is no distinction in England between
constitutional law and ordinary law. Thirdly, no law
passed by the Parliament can be declared
unconstitutional by the courts. In India, Parliament
is not supreme but the Constitution is supreme.
Parliament is the creature of the Constitution and
derives its powers from the provisions of the
Constitution including the power to amend the
constitution under Article 368. Laws passed by
Parliament can be declared ultra vires the
Constitution.
There
is
distinction
between
constituent powers of Parliament and its ordinary
law making powers. The amending power under
Article 368, therefore, cannot be exercised in such
a way so as to subvert or abrogate the
Constitution.
Thus the Constitutional amendments made under
Article 368 can still be challenged on the ground that
they are destructive of the basic features of the
Constitution.
Fourth Stage:o In Minerva Mills Limited v. Union of India, AIR 1980

SC 1789, the Supreme Court by 4:1 majority struck down
Clauses (4) and (5) of Article 368 inserted by the 42 nd
Amendment Act, on the ground that these clauses
destroyed the essential feature of the basic structure of the
Constitution. Since these clauses removed all limitations on
the amending power and thereby conferred an unlimited
and absolute amending power to the Parliament, it was
destructive of the basic feature of the Constitution.
The judgment of the Supreme Court thus makes it clear
that the Constitution and not the Parliament is
supreme in India. This is in accordance with the intention of
the framers who adopted a written Constitution for the
country.
o In this case, the Supreme Court has held that the following
are the basic features of the Constitution:
a) limited power of Parliament to amend the Constitution;
b) harmony and balance between fundamental rights and
directive principles;
c) fundamental rights in certain cases;
d) power of judicial review in certain cases.
Independence of Judiciary is also a part of the basic
structure of the Constitution.45
o In Waman Rao v. Union of India, AIR 1981 SC 271, the
Supreme Court held that all amendment to the Constitution
which were made before 24th April, 1973 (i.e., the date on
which the judgment of Kesavananda Bharati was delivered)
including those by which the Ninth Schedule to the
Constitution was amended from time to time were valid
45 Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428. In
this case appointment of a High Court Judge was quashed on the
ground that he was unqualified.
Page 41
and constitutional. But amendments to the Constitution

made on or after that date by which the Ninth Schedule
was amendment were left open to challenge on the ground
that they were beyond the constituent power of Parliament
because they damaged the basic structure of the
Constitution.
o In this case, the Supreme Court laid down, All
amendments to the Constitution before April 24 th, 1973 and
by which the Ninth Schedule to the Constitution was
amended from time to time by inclusion of various Acts and
Regulations
therein
are valid
and Constitutional.
Amendments to the Constitution made on or after April
24th, 1973, by which the Ninth Schedule was amended from
time to time by the inclusion of various Acts and
Regulations therein, are open to challenge on the ground
that they, or any one or more of them are beyond the
constituent power of the Parliament since they damage the
basic or essential features of the Constitution or the basic
structure.46
o In S.P. Sampath Kumar v. Union of India, AIR 1987 SC
386, the constitutional validity of Article 323-A and the
provisions of the Administrative Tribunals Act, 1985, was
challenged on the ground that the Act by excluding the
jurisdiction of the High Courts under Articles 226 and 227
in service matters had destroyed the power of judicial
review which was a basic feature of the Constitution. The
Supreme Court upheld the validity of Article 323-A and the
Act as the necessary changes suggested by the Court were
incorporated in the Administrative Tribunal Act. It held that
though the Act has excluded the judicial review of High
Court in service matters under Articles 226 and 227, but as
it has not excluded judicial review under Articles 32 and
136, the Act is valid. The Amendment does not affect the
46 Waman Rao v. Union of India, AIR 1981 SC 271
Page 42
basic structure of the Constitution as it has vested the

power of judicial review in an alternative institutional
mechanism, after taking it from the High Courts which is
not less effective than the High Courts.
o In Raghunath Rao v. Union of India, AIR 1993 SC
1267, the Supreme Court has reiterated the proposition
that the basic features of the Constitution cannot be
amended by following the procedure laid down in Article
368. The Court has observed that the Constitution is the
supreme law of the land and all organs of governmentexecutive, legislature and judiciary derive their powers and
authority from the Constitution. The Courts are entrusted
with the important constitutional responsibilities of
upholding the supremacy of the constitution. The
amendment of the Constitution is only for the purpose of
making the Constitution more perfect, effective and
meaningful. An amendment should not result in
abrogation or destruction of its basic structure or loss of
its original identity and character and render the
Constitution unworkable
If an amendment trespasses its limits and impairs and
alters the basic structure or essential features of the
Constitution then the Court has power to undo that
amendment. An amendment of the Constitution becomes
ultra vires if the same contravenes or transgresses the
limitations put on the amending power because there is no
touchstone outside the Constitution by which the validity of
the exercise of the said powers conferred by it can be
tested.
The Supreme Court has stated that unity and integrity of
India and the principle of equality contained in Article 14
constitute the basic structure of the Constitution.
o In a landmark judgment in L. Chandra Kumar v. Union
of India, AIR 1997 SC 1125, a seven-member
Page 43
Constitution Bench of the Supreme Court has unanimously

while reconsidering the Sampath Kumars case, has struck
down Clause 2(d) of
Article 323-A and Clause 3(d) of
Article 323-B which provided for the exclusion of the
jurisdiction of the High Courts under Article 226 and 227
and the Supreme Court under Article 32 of the Constitution
as unconstitutional and invalid as they damage the power
of judicial review which is the basic feature of the
Constitution. The Court has held that, power of judicial
review over legislative action vested in the High Courts
under Article 226 and the Supreme Court under Article 32
of the Constitution is an integral and essential feature of
the Constitution and formed part of its basic structure.
Ordinarily, therefore, the power of High Courts and the
Supreme Court to test the constitutional validity of
legislations can never be ousted excluded. Following the
Kesavananda
Bharatis
case,
the
Court
declared
unconstitutional Clause 2(d) of Article 323-A and Clause
3(d) of Article 323-B of the Constitution, to the extent that
they excluded the jurisdiction of the High Courts under
Article 226 and 227 and the Supreme Court under Article
32 of the Constitution.
The Court said that while this jurisdiction cannot be ousted,
other Courts and tribunals may perform a supplemental
role in discharging the powers conferred by Article 226 and
227 and Article 32 of the Constitution, so long as the
jurisdiction of the High Courts under Articles 226 and 227
and of the Supreme Court under Article 32 is retained there
is no reason the power to test the validity of legislations
against the provisions of the Constitution cannot be
conferred upon Administrative Tribunals created under
Article 323-A and Article 323-B of the Constitution.
Page 44
o In M. Nagraj v. Union of India, AIR 2007 SC 71, the

petitioners challenged the Constitutional validity of the
Constitution 77th Amendment Act, 1995, introducing Article
16 (4-A) nullifying number of decisions, the 81st
Amendment Act, 2000, introducing Article 16 (4-B),
introducing promotion in reservation also which was
stopped in Indra Sawhneys case,47 and 82nd Amendment
Act, 2000, introducing proviso to Article 355 which
emphasizes the importance of maintaining efficiency in
administration and the 85th Amendment Act, 2001, adding
words with consequential seniority in Article 16 (4-A)
nullifying decisions in Ajit Singhs case48 on the ground that
they violate basic features of the Constitution. However, a
five Judge Bench of the Supreme Court headed by Chief
Justice of India, Sabharwal, J. unanimously held that these
amendments do not violate the basic feature of the
Constitution. They are enabling provisions and only apply
to Scheduled Castes and Scheduled Tribes. They do not
obliterate constitutional requirements, such as 50%
ceiling limit in Reservation, Creamy Layer Rule and post
based roster sub-classification between Other Backward
Class (O.B.C.) on one hand, and Scheduled Tribes (ST) on
the other hand, as held in Indra Sawhneys case. They do
not alter the structure of equality of codes, therefore, they
are not beyond the amending power of the Parliament.
o In I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC

8617, headed by Chief Justice Y.K. Sabharwal (comprising
Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.P.
Thakker, P.K. Balasubramanyam, Altaman Kabil and D.K.
47 AIR 1993 SC 477
48 Ajit Singh Januja v. State of Punjab, 1996 AIR 1189 JT 1996 (2) 727.
Page 45
Jain, JJ.) held that any law placed in the Ninth Schedule
after 24th April, 1974, when Kesavananda Bharatis
judgment was delivered will be open to challenge. The
Court said that even though an Act is put in Ninth Schedule
by a Constitutional Amendment, its provisions would be
open to challenge on the ground that they destroy or
damage the basic feature, if the fundamental rights are
taken away or abrogated pertaining to the basic feature of
the Constitution. The Ninth Schedule was introduced to the
Constitution through Article 31 (b) by the First
Constitutional (Amendment) Act, 1951. The object of the
Ninth Schedule was to save Land Reform Laws enacted by
various states from being challenged in the court. Later on,
it became an omnibus and every kind of law whether it
related to election, mines and minerals, industrial relations,
requisition of property, monopolies, coal or copper
nationalization, general insurance, sick industries acquiring
the Altcock Ashdown Company, Kerela Chillies Act, Tamil
Nadu reservation of 69% and so on were inserted in it. No
principle under lies this selection. Today the total number
of Acts, inserted in Ninth Schedule of the Constitution is
284. The Tamil Nadu law in it was included because of the
Supreme Courts rulings in the Indra Sawhneys case that
overall reservation cannot exceed 50%. In the instant case,
the politicians had challenged the validity of the various
Central and State laws put in the Ninth Schedule including
the Tamil Nadu Reservation Act. The Court said that the
validity of any Ninth Schedule law has been upheld by the
Apex Court and would not be open to challenge it again,
but if a law is held to be violative of Fundamental Rights
incorporated in the Ninth Schedule after the Kesavananda
Bharatis case, such a violation shall be open to challenge
on the ground that it destroys or damages the basic
structure of the Constitution.
Page 46
Theory of Basic Structure:The Theory of Basic Structure very effectively proved to be

a limitation on the amending power of the Parliament. The
Basic
Structure
doctrine
applies
only
to
the
Constitutionality of amendments and not to ordinary Acts
of Parliament, which must conform to the entirety of the
Constitution and not just its basic structure. The theory of
basic structure which cannot be altered by amendment, is
gaining ground internationally as a doctrine of
constitutional
interpretation
which
protects
liberal
Constitutions of nascent democracies and prevents
encroachments on peoples human rights.
Although the basic structure doctrine has been criticized as
judicial legislation, it has helped to protect the Constitution
against dictatorial law-making or changes in the
Constitution that encroach upon the structural safeguards
provided in the Constitution to protect independent yet
harmonious functioning of the three organs of governance.
Thus Rule of Law, judicial review and independence of the
judiciary have been considered as basic features of the
Constitution.49 Secularism has been also considered as a
basic feature.50 Equality under Articles 14 and 16(1) is basic
feature.51 Separation of powers and independence of the
judiciary was again considered basic in the case of Bal
Mukund Sah.52
49 C. Ravichandran Iyer v. Justice A.M. Bhattaharjee, (1955) 5 SCC 457

50 Valsamma Paul v. Cochin University, (1996) 3 SCC 545.
51 Indra Sawhney II v. Union of India, (2000) 1 SCC 168.
52 State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640
Page 47
What then are the essentials of the basic structure of the

Constitution? Although the Judges enumerated certain
essentials of the basic structure of 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 Kesavananda Bharati v. State of Kerela, the Judges
has enumerated certain essentials of basic structure
theory. Most importantly seven of the thirteen judges,
including Chief Justice Sikri who signed the summary
statement, declared that Parliament's constituent power
was subject to inherent limitations. Parliament could not
use its amending powers under Article 368 to 'damage',
'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the
'basic structure' or framework of the Constitution.
Each judge laid out separately, what he thought were the

basic or essential features of the Constitution. There was
no unanimity of opinion within the majority view either.
o Sikri, C.J. explained that the concept of basic
structure included:
supremacy of the Constitution
republican and democratic form of government
secular character of the Constitution
separation of powers between the legislature,
executive and the judiciary
o federal character of the Constitution
o
o
o
o
o Shelat, J. and Grover, J. added two more basic

features to this list:
o the mandate to build a welfare state contained
in the Directive Principles of State Policy
o unity and integrity of the nation
Page 48
o Hegde, J. and Mukherjea, J. identified a separate

and shorter list of basic features:
sovereignty of India
democratic character of the polity
unity of the country
essential features of the individual freedoms
secured to the citizens
o mandate to build a welfare state
o
o
o
o
o Jaganmohan Reddy, J. stated that elements of the

basic features were to be found in the Preamble of
the Constitution and the provisions into which they
translated such as:
o sovereign democratic republic
o parliamentary democracy
o three organs of the State
He said that the Constitution would not be itself
without the fundamental freedoms and the
directive principles.
Only six judges on the bench (therefore a minority

view) agreed that the fundamental rights of the
citizen belonged to the basic structure and
Parliament could not amend it.
The minority view:The minority view delivered by Justice A.N. Ray (whose
appointment to the position of Chief Justice over and above
the heads of three senior judges, soon after the
pronunciation of the Kesavananda verdict, was widely
considered to be politically motivated), Justice M.H. Beg,
Justice K.K. Mathew and Justice S.N. Dwivedi also agreed
that Golaknath had been decided wrongly. They upheld the
validity of all three amendments challenged before the
Page 49
court. Ray, J. held that all parts of the Constitution were

essential and no distinction could be made between its
essential and non-essential parts. All of them agreed that
Parliament could make fundamental changes in the
Constitution by exercising its power under Article 368.
In summary the majority verdict in Kesavananda Bharati
recognised the power of Parliament to amend any or all
provisions of the Constitution provided such an act did
not destroy its basic structure. But there was no
unanimity of opinion about what appoints to that basic
structure. Though the Supreme Court very nearly returned
to the position of Sankari Prasad (1952) by restoring the
supremacy of Parliament's amending power, in effect it
strengthened the power of judicial review much more.
Limitations on the Constituent Power of

Amendment:What are the limitations on the constituent power? The
answer to this question is found in Election case,
Kesavananda Bharati case and the Miverva Mills case.
1. In the Election case, the Supreme Court pointed out
that Parliament, acting in its constituent capacity,
cannot exercise judicial power itself directly without
vesting it in itself first by an amendment of the
Constitution (Beg, J.). The resolution of an election
dispute by the amending body is not a law. It is either a
judicial sentence or a legislative judgment like of
attainder (Mathew, J.).
2. Other limitations on the power of Parliament to amend
the Constitution are laid down by the Supreme Court in
Kesavananda Bharatis case. The Majority in that
case laid down the following propositions with regards to
amendment of the Constitution:
Page 50
(a) The expression Amendment of the Constitution in

Article 368 means any addition or change in any of
the provisions of the Constitution within the broad
counters of the preamble and the constitutional
amendment does not include the repeal of the
Constitution.
(b)There are no implied limitations on the power of the
amendment.
(c) Article 13(2) is not applicable to an amendment of
the Constitution. Chandrachud, J. rightly pointed out
that Article 368 avoids with scrupulous care the use
of the word law, because this is a fundamental
distinction
between
constitutional
law
and
ordinary law.
3. In Minerva Mills case, the Supreme Court laid down
the following principles:
(a) The power to destroy is not a power to amend.
(b)The Constitution is founded on a nice balance of
power among the three wings of the State, namely,
the Executive, the Legislature and the Judiciary.
(c) The abridgement of a fundamental right may involve
violation of basic structure. It would all depend on the
nature of the fundamental right, the extent and
depth of the infringement, the purpose for which the
infringement is made and its impact on the basic
values of the Constitution. Hence the Court
concluded that the conferment of the right to
destroy the identity of the Constitution coupled with
the provision that no court of law shall pronounce
upon the validity of such destruction seems to be a
transparent case of transgression of the limitations
on the amending power.
4. Parliament, however, has no power to amend the basic
features of the Constitution.
Page 51
CONCLUSION:The problem of the nature and scope of constituent and

amending power raised ever since, Golak Naths case still
remains unresolved. As a matter of strict law, it remains
possible to argue even now that Kesavananda Bharatis
case did not decide that basic structural limitations
contained the amending power; that the decision in Indira
Nehru Gandhis case was based on the concessions; that
there is no warrant either to accept the Kesvananda
Bharatis summary as binding or to accept the gloss placed
by Justice Khanna in Indira Nehru Gandhi as being
elucidative of Kesavananda rationes; and the Minerva Mills
case and Waman Rao case in so far as they regard either
Kesavananda Bharati or Indira Nehru Gandhi as binding.
This strategy of argument remains open to the government
in future and it is idle to say that it exists only by way of
flutter in ivory towers. Indeed, the very arguments used
by the Court for rejecting stare decisis may well apply to
this strategy.
But even if the present holdings that Kesavananda
judgment imposes basic structural limitations on amending
power is accepted as representing the Constitutional
consensus, the decisions so far do not fully elucidate what
these limitations precisely are. It appears however that
certain limitations are emergent. Firstly, a total repeal of
the Constitution would be violative of basic structure.
Secondly, any expansion of Article 368 powers to achieve
this consequence would also be similarly violative. Thirdly,
any attempt to deprive the court of the power of judicial
review over Constitutional amendments would also be
transgressive of basic structure. Fourthly, the power to
amend may not be used to adjudicate specific disputes.
Fifth, the freedoms guaranteed by Article 14, 19 and 21
constitute limits to power of amendment. Sixth, any
Page 52
attempt to abrogate Part IV of the Constitution may violate

the basic structure. Seventh, the democratic nature of the
Constitution may not be validly transformed by the use of
Article 368 power.
The scope of basic structure limitations on the amending
power above and beyond these seven categories remains
indeterminate. It would appear that the Supreme Court is
inclined to delineate these limitations case by case, rather
than abstractly.
Since Kesavananda Bharati case, the matter has been
considered by the Supreme Court in several cases and the
Court has had occasion to declare several features of the
Constitution as fundamental features or basic structures of
the Constitution.
It is generally agreed that all fundamental Rights do not
constitute basic features. For example, in Kesavananda
itself it has been held that the right to property does not
pertain to the basic structure of the Constitution 53. Now
that Article 31 has been repealed, and Article 300-A
included in the Constitution, right to property has ceased to
be a Fundamental Right, as well as basic feature of the
Constitution. It is now merely a constitutional right54.
We can say that Fundamental Rights as a whole may not
form a basic structure/feature of the Constitution but a
certain Fundamental Right or some of them together do
form a very important part of the Basic Structure of the
Constitution.
The final word on the issue of Amendability of Fundamental
Rights can be related to the Theory of Basic Structure of
the Constitution defined in Kesavananda Bharatis case.
53 Jilubhai Nanbhai Khachar v. State of Gujrat, AIR 1995 SC 142.
54 J.N. Khachar v. State of Gujrat AIR 1995 SC 154.
Page 53
It may be said that the issue of the basic structure of the

Constitution has not been pronounced by the Supreme
Court a scenario that is unlikely to change in the near
future. While the idea that there is such a thing as a basic
structure to the Constitution is well established; its
contents cannot be completely determined with any
measure of finality until a judgment of the Supreme Court
spells it out. Nevertheless the sovereign, democratic and
secular character of the polity, rule of law, independence of
the judiciary, fundamental rights of citizens, etc. are some
of the essential features of the Constitution that have
appeared time and again in the apex court's
pronouncements. One certainty that emerged out of this
tussle between Parliament and the Judiciary is that all laws
and constitutional amendments are now subject to judicial
review and laws that transgress the basic structure are
likely to be struck down by the Supreme Court. In essence
Parliament's power to amend the Constitution is not
absolute and the Supreme Court is the final arbiter over
and interpreter of all constitutional amendments.
Bibliography
Help was taken from the following sources:-
Page 54
Constitutional Law of India by Durga Das Basu.

Constitutional Law of India by H.M. Seervai
Interpretation of Statutes by Vepa P. Sarathi
Oxford Dictionary of Law
Blacks Law Dictionary
Mitras Legal and Commercial Dictionary
T.K. Topes Constitutional Law of India by Sujata

V. Manohar.
The Constitutional Law of India by Dr. J.N.
Pandey.
Indian Constitutional Law by M.P. Jain.
Constitution of India (Bare Act).
Supreme Court Cases.
All India Reports.
www.indiankanoon.org
www.google.com
Various Law Journals.
Page 55

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Assignment on Amendment Of Fundamental Rights

Assignment on Amendment Of Fundamental Rights

Assignment on Amendment Of Fundamental Rights

f) M. Nagraj v. Union of India

Assignment on Amendment Of Fundamental Rights

Assignment on Amendment Of Fundamental Rights

Assignment on Amendment Of Fundamental Rights

Assignment on Amendment Of Fundamental Rights

goal which the framers of the Indian Constitution kept before

Assignment on Amendment Of Fundamental Rights

type. Hence, they adopted a middle course. It is neither too

3 Keshavananda Bharati v. State of Kerela, AIR 1973 SC 1461

Assignment on Amendment Of Fundamental Rights

The term Amendment must be construed in its natural

Blacks Law Dictionary defines Amendment as, A formal

Modes of Amendment of the Constitution:There are two modes/types

Assignment on Amendment Of Fundamental Rights

Formal Mode of Amendment

Assignment on Amendment Of Fundamental Rights

Articles which require, in addition to the special

d) Amendment under Article 368 of the Indian

Informal Mode of Amendment

Assignment on Amendment Of Fundamental Rights

Constitutional usages. When an amendment or a law

FUNDAMENTAL RIGHTS:Part III of the Indian Constitution contains a long list of

Assignment on Amendment Of Fundamental Rights

Constitution, enables our Parliament to legislate only

Assignment on Amendment Of Fundamental Rights

Remedies is secured by Articles 32 to 35. These Articles

Importance of Fundamental Rights:Fundamental Rights were deemed essential to protect the

Assignment on Amendment Of Fundamental Rights

notwithstanding the representative character of political

Assignment on Amendment Of Fundamental Rights

including non-resident Indian citizens. The right to equality

Assignment on Amendment Of Fundamental Rights

intended to make all citizens and persons appreciate that

12 Moti Lal v. State of Uttar Pradesh, AIR 1951 All. 257

Assignment on Amendment Of Fundamental Rights

The times & life of a Nation is not static. The Constitution

Assignment on Amendment Of Fundamental Rights

members of that House present and voting, [it shall be

15 Subs. by the Constitution (24th Amendment) Act, 1971, Section 3(c),

Assignment on Amendment Of Fundamental Rights

second Amendment) Act, 1976 shall be called in question

Article 368, was first amended by the Constitution

18 Golak Nath v. State of Punjab, AIR 1967 SC 1643

Assignment on Amendment Of Fundamental Rights

compliance with the requirements of Article 368,

Assignment on Amendment Of Fundamental Rights

Article 368 as it stands after 1976:

Assignment on Amendment Of Fundamental Rights

ordinary Legislature of the Union, i.e., the Parliament

Part III of the Indian Constitution contains the Chapter on

Assignment on Amendment Of Fundamental Rights

Article 13 states that:13.

[(4) Nothing in this article shall apply to any

24 Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971,

Assignment on Amendment Of Fundamental Rights

State: Article 12 clarifies that the term State occurring in

25 P.D. Shamdasani v. Central Bank of India, AIR 1952 SC 59.

Assignment on Amendment Of Fundamental Rights

of Inquiry Act setting up a commission of inquiry, 27 a

Assignment on Amendment Of Fundamental Rights

right. The Supreme Court has figuratively characterized this