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List of Abbreviations

List of cases



Significance of study

Research Methodology




























Art Article
pg. Page
pp. Pages
AIR- All India Report
SC- Supreme Court
SCC- Supreme Court Cases
Art.- Article
HC- High Court
UOI- Union Of India
SCR- Supreme Court Report


Golak Nath vs. State of Punjab

I R Coelho vs. State of TN
Indira Gandhi vs. Raj Narain
Indira Sahwney vs. UOI
Keshavnanda Bharti vs. State of Kerala
L Chandra Kumar vs. UOI
M. Nagraj v. Union of India
Minerva Mills Ltd v. Union of India
S P Sampath Kumar vs. UOI
Sajjan Singh vs. State of Rajasthan
Shankari Prasad vs. UOI
Shri kumar Padmaprasad vs. UOI
Waman Rao v. Union of India


The constitution of India is not rigid and inflexible, but rather it is a mix of these both. Article
368 to some extent XX offers forces to parliament to correct the constitution and its
strategies. Parliament can revise it by including article, or erase any procurement, yet
however parliament can't correct those procurements which change the 'fundamental

structure' of parliament (The preeminent court of India has ruled this in Kesavananda Bharti
case in 1973). The American constitution is exceptionally inflexible and that of Britain
extremely adaptable. Our constitution is the union of these two constitutions. To evolve and
change with all changes in the society and environment is a necessity for every constitution.
The makers of the Constitution of India were fully aware of this need. They laid down a
flexible amendment method in respect of its some parts and for several others they provided
for a rigid method.

Objective is to understand why we have the provision to amend the constitution. To
understand the necessity of amending the constitution. To know the procedure of amending
the constitution and to know the pros and cons of the amendment.

The study will help us to understand the reason why do we the provision of amending the
constitution and what is the prospects of having such provision.

The research methodology used for the project is doctrinal. Doctrinal research is the method
of research through analysis of articles, texts, and writings by applying logic and reasoning
power. This type of research methodology is generally non-empirical.

The Constitution of India lays down the framework on which Indian polity is run. The
Constitution declares India to be a sovereign socialist democratic republic, assuring its
citizens of justice, equality, and liberty. It was passed by the Constituent Assembly of India
on November 26, 1949, and came into effect on January 26, 1950. The Constitution is
superior to all other laws of the country. Every law enacted by the government has to be in
conformity with the Constitution. The Constitution lays down the national goals of India Democracy, Socialism and National Integration. It also spells out the Fundamental Rights,
Directive Principles and Duties of citizens. The Constitution lays down the basic structure of
government under which the people chose themselves to be governed. The Draftsmen of the
Indian Constitution took inspiration from Constitutions all over the world and incorporated
their attributes into the Indian Constitution. For example Part III on Fundamental Rights is
partly derived from the American Constitution and Part 1V on Directive Principles of State
Policy from the Irish Constitution. A Constitution should be a dynamic document. It should
be able to adapt itself to the changing needs of the society. Sometimes under the impact of
new powerful social and economic forces, the pattern of government will require major
changes. Keeping this factor in mind the Draftsmen of the Indian Constitution incorporated
Article 3681 in the Constitution which dealt with the procedure of amendment. Due to Article
368 the Indian Constitution can neither be called rigid nor flexible but in fact it is partly rigid
and partly flexible. Classification of amendment procedures can if classified in two heads as
1 Power of Parliament to amend the Constitution and procedure therefore

rigid and flexible. Rigid procedures means difficult to amend the constitution like that of
U.S., Australia, Canada and Switzerland and flexible procedure means in which procedure to
amend is easy, and can be done even by passing a normal legislation like that of United
Kingdom.2 In this connection, it is worthwhile to quote Pandit Nehru who clearly stated,
"While one wants this Constitution to be as solid and permanent as we can make it, there is
no permanence in the Constitution. There should be certain flexibility. If you make anything
rigid and permanent, you stop the nation's growth, the growth of a living vital organic people.
While the world is in turmoil and we are passing through a swept period of transition, what
we may do today may not be wholly applicable tomorrow".3


Provision for amendment of the constitution is made with a view to overcome the difficulties
which any encounter in future in the working of the constitution. If no provisions were made
for the amendment of the constitution, the people would have recourse to extra constitutional
2 Arun Soni, Amendment of Indian Constitution - Article 368, Available at: (last visited on 4 th March, 2016)
3 Maulin Joshi, What is the Procedure of Amendment of the Constitution of India?, available at: (last visited on 5th March, 2016)

method like revolution to change the constitution. But the framers of Indian constitution were
also aware of the fact that if the constitution was so 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 type. Hence, the adopted a middle course. It is neither too rigid to admit
necessary amendments, nor flexible for undesirable changes. The purpose for providing for
the amendment of the constitution is to make it possible gradually to change the constitution
in an orderly fashion as the changes in social condition make it necessary to change the
fundamental law to correspond with social changes.
Now the questions come why do amendments are required to any Constitution? Simple
reason is to react to the changing situations and circumstances within the country and
internationally also. As per the available history of the democratic countries no country can
function with permanent constitution. Few or more amendments are required as per the
changing situations. Like after the 2001 attack on world trade Centre, the US Congress by a
resolution conferred special power upon the President of US to take military action against
any nation that may cause security issue the US or those who are involved in the 2001 attack.
This was the first of its kind amendment in the US Constitution which gives complete sole
authority to the President for taking any military action against any country


For the purpose of amendment the various articles of the constitution are divided into three

1. Amendment by simple majority- articles that can be amended by parliament by simple

majority as that required for passing of any ordinary law. The amendments
contemplated in articles 54, 1695 and 239-A6 can be made by simple majority. These
articles are specifically excluded from the purview of the procedure prescribed in
article 368.
It applies to the following provisions of the Constitution:
Admission/ formation of new States and alteration of areas, boundaries or

names of existing States.

Citizenship provision.
Provision regarding delimitation of constituencies.
Quorum of the two Houses of Parliament.
Privileges and Salaries and allowances of the MPs.
Rules of procedure in each House of the Parliament.
English as a language of the Parliament.
Appointment of Judges and jurisdiction of Supreme Court.
Creation or abolition of Upper Houses in any state.
Legislatures for Union Territories.
Elections in the country.
Official language of India.
Second, fifth and sixth Schedules of the Constitution.7

2. Amendment 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
4 Citizenship at the commencement of the Constitution At the commencement of this Constitution every person
who has his domicile in the territory of India and(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years preceding such
commencement, shall be a citizen of India

5 Abolition or creation of Legislative Councils in States

6 Creation of local Legislatures or Council of Ministers or both for certain Union territories.- (1) Parliament
may by law create for the Union territory of Pondicherry(a) a body, whether elected or partly nominated and
partly elected, to function as a Legislature for the Union territory, or
(b) a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be
specified in the law.
(2) Any such law as is referred to in clause (1) shall not be deemed to be an amendment of this Constitution for
the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of
amending this Constitution.

7Procedure of Amendment of the Constitution: Method of Amendment, available at: (last visited on 12th March 2016)

those referred to above, come within this category and must be effected by a majority
of not less than 2/3 of the members of that house present and voting.
3. By special majority and ratification by state- article which require, in addition to the
special majority mentioned above. Ratification should not be less than by of the
state legislatures. The states are having 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 the 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 ratification by the states:
Election of president- article 54 and 55
Extent of the executive powers of the union and the states- articles 73 and 162
Articles dealing with judiciary, SC, HC in the states and union territories

articles 124 to 147, 214 to 231, and 241.

Distribution of legislative powers between the centre and the state- articles

245 to 255.
Any of the lists of the VIIth schedule.
Representation of states in parliament IVth schedule.
Article 368 itself.

A bill to amend the constitution can be introduced in either House of parliament. It must be
passed by each house by a majority of the total membership of the house and by a majority of
not less than 2/3 of the members of the total membership of that house present and voting.
When the bill is passed by both the houses it shall be presented to the president for his assent.
If he gives his assent to the bill then the constitution shall stand amended. 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 of the states.
Article 368, however, does not constitute the complete code. The process of amending the
constitution is the legislative process governed by the rules of that process. Thus, it is clear
that most of the provisions of constitution can be amended by an ordinary legislative process.
Only a few provisions which deal with the federal principle require a special majority plus
ratification of the states.


In Australia, the constitutional amendment must be proposed by an absolute majority of both

house of parliament. It must be submitted to the lectors for approval within months and must
be approved by a majority of the electors in a majority of the states.
In America, a constitutional amendment can be proposed in either of the two ways- (1) by 2/3
majority of the votes of both houses congress, or (2) by a convention called on the application
of the legislature of 2/3 of the states. An amendment proposed in either of the above two
ways can be ratified in either of two ways: (1) by the legislatures of of the states, or (2) by
convention in of the states.8
From the above it is clear that the amending procedure in Australian and the American
constitution is much more difficult than in the Indian constitution. It may be said that the
Indian constitution-makers have sought to find path between the two extremes- extreme
flexibility and extreme rigidity, as this, it is hoped, will duly meet the needs of a growing


The question whether fundamental rights can be amended under article 368 came for
consideration of the SC in Shankari Prasad vs. UOI, in this case validity of the constitution
(1st amendment) 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 art 13(2) and hence was void. It was argued that the state in article 12
included parliament and the word law in article 13(2), therefore must include constitution
8 J N Pandey, Constitution of India, ( 52nd ed., Central Law Agency, Allahabad, 2015) pg. 823.

amendment. The SC however, rejected the above argument and held that the power to amend
the constitution including the fundamental rights is contained in art 368, and that the word
law in article 13(8) includes only an ordinary law made in exercise of the legislative powers
and does not include constitutional amendment which is made in exercise of the constituent
power. Therefore, a constitutional amendment will be valid even if abridges or takes any of
the Fundamental rights.
Then again in Sajjan Singh vs. State of Rajasthan9, the validity of the 17th amendment of the
constitution was challenged. The SC approved the majority judgment given in Shankari
Prasads case10 and held that the words amendment of the constitution means amendment
of all the provisions of the constitution and 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.
But in the Golaknath case the court with a 6 to 5 majority came to the conclusion that the
amendments were invalid as they abrogated the right to property which was at that time a
fundamental right. This did not affect the past cases as the entire agrarian revolution would
have been reversed if that had come to be the state of affairs. 11 The Golaknath decision had
arrived at the conclusion that the Parliament did not have the power to amend the
Constitution which is derived from art 245, read with entry 97 of list I of the constitution and
not from art. 368. Art 368 lays down merely the procedure for amendment of the constitution.
Amendment is a legislative process. Court also said that amendment is a law within the
meaning of art 13(2) and therefore, if it violates any of the fundamental rights it may be
declared void. The word Law in art 13(2) includes every kind of law, statutory as well as
constitutional law and hence a constitutional amendment which contravened art. 13 (2) will
be declared void.12 The chief justice applied the doctrine of prospective overruling and held
9 1967 AIR 1643, 1967 SCR (2) 762
10 Supra 5
11Subbarao Venkata G. C., Jurisprudence and legal Theory, (9th ed., Eastern Book Company,
Lucknow, 2008), Pg .111
12 Bal Patil, Supreme Court Volte-Face on Constitutional Amendment,, available at:,
(Last visited on 11.03.2016, 9:00 PM)

that this decision will have only prospective operation and, therefore, the 1 st, 4th and 17th
amendment will continue to be valid. It means that all cases decided before the Golak naths
case shall remain valid. The minority however held that the word law in article 13(2)
referred only to ordinary law and not a constitutional amendment.

In order to remove the difficulties created in the Golak Nath case SC enacted the 24 th
amendment act. It made the following amendments:

It has added a new clause (4) to Art. 13 which provides that nothing in this Article

shall apply to any amendment of this constitution made under Art. 368.
It substituted a new marginal heading to art. 368 in place of old heading procedure
for amendment of the constitution. The new heading is power of parliament to

amend the constitution and procedure thereof.

It inserted a new sub section (1) in art. 328 which provides that notwithstanding
anything in the constitution, parliament may, in exercise of its constitutent power
amend by way of addition, variation, or repel any provision in accordance with

procedure laid down in 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. Thus making it mandatory

for the president to give his assent for the bill.

It has added a new clause (3) to Art. 368 which provides that nothing in art. 13 shall
apply to any amendment made under this article.13

Thus the 24th amendment not only restored the amending the power of the parliament but also
extended its scope by adding the words to amend by way of addition or variation or repeal
any provision of this constitution in accordance with the procedure laid down in this article.

13 Supra 13

The validity of 24th amendment was challenged in Keshavananda Bharti vs. State of Kerala 14.
The Supreme Court in the landmark case of Keshvanandabharathi v. State of Kerala15 held
that the Parliament under the Indian Constitution is not supreme. It cannot change the basic
structure of the constitution. It also declared that in certain circumstances, the amendment of
fundamental rights would affect the basic structure and therefore, would be void. Thus, one
can see that this case is drawn on a larger canvass as compared to that of Golaknath. It also
overruled Golaknath and thus, all the previous amendments which were held valid are now
open to be reviewed. They can also be sustained on the ground that they do not affect the
basic structure of the constitution or on the fact that they are reasonable restrictions on the
fundamental rights in public interest. Both the cases, is seen closely, bear the same practical
effects. What Golaknath said was that the Parliament cannot amend so as to take away the
fundamental rights enshrined in Part III, whereas in Keshavananda, it was held that it cannot
amend so as to affect the basic structure. As we all know, the basic structure is a figment of
judicial imagination. So what exactly constitutes basic structure cannot be clearly underlined.

14 AIR 1973 SC 1461

15 Ibid


The Doctrine of Basic Structure is a judge-made doctrine which was propounded by the
Indian Judiciary on 24th April 1973 in Keshavananda Bharati case to put a limitation on the
amending powers of the Parliament so that the basic structure of the basic law of the land
cannot be amended in exercise of its constituent power under the Constitution 16. The
Supreme Court declared that Article 368 did not enable Parliament to alter the basic structure
or framework of the Constitution and parliament could not use its amending powers under
Article368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure'
or framework of the constitution.17 The basic structure doctrine applies only to constitutional
amendments. The basic features of the Constitution have not been explicitly defined by the
Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is
determined by the Court in each case that comes before it. The basic structure doctrine does
not apply to ordinary Acts of Parliament, which must itself be in conformity with the
Although 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. In M Nagraj vs.
UOI19, judge bench of the SC explained basic structure as systematic principles underlying
and connecting provisions of the constitution. They give coherence and durability to
constitution. This doctrine has essentially developed from the German constitution.
Each Judge enumerated in Keshavnanda Bharti case separately, what he thought was the
basic or essential features of the Constitution. There was no unanimity of opinion within the
majority view either. Sikri, C.J. explained that the concept of basic structure included:
16 Aqa Raza, The Basic Structure Doctrine in the Indian Constitution: A Juridical Critique, available
at: (last visited on 28 th March 2016)
17Himanshu Tyagi, Doctrine of Basic Structure - Constitutional Law, available at: (last visited on 30 th March 2016)
18 Available at: (last visited on 23 rd March
19 AIR 2007 SC 71

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
federal character of the Constitution

Shelat, J. and Grover, J. added two more basic features to this list:

the mandate to build a welfare state contained in the Directive Principles of State

unity and integrity of the nation

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
mandate to build a welfare state

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:

sovereign democratic republic

However certain constitutional amendments must be ratified by at least half of the State
legislatures before they can come into force. Matters such as the election of the President of
the republic, the executive and legislative powers of the Union and the States, the High
Courts in the States and Union Territories, representation of States in Parliament and the
Constitution amending provisions themselves, contained in Article 368, must be amended by
following this procedure.

parliamentary democracy
three organs of the State

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 delivered by Justice A.N. Ray, 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 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 368.20
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 Shankari Prasad
(1952) by restoring the supremacy of Parliament's amending power, in effect it strengthened
the power of judicial review much more.21
In Indira Gandhi vs. Raj Narain22, 39th amend (Art. 329 clause 4 ) was challenged which was
barring the judiciary to decide any matter relating to the disputes arose during the election of
4 members, i.e., PM, President, Vice-President, speaker of the Lok Sabha. This was struck
down as unconstitutional and was said that Basic structure also includes:

Rule of law
Judicial Review
Jurisdiction of SC under art 32 of constitution
Free and fair elections

20Venkatesh Nayak, The Basic Structure of the Indian Constitution, available at:
on.pdf (last visited on 23rd March 2016)
21 The majority view declared certain parts of the Twenty-fifth amendment invalid especially those
relating to Article 31 (c) and upheld the Twenty-ninth amendment- for a detailed account see Austin,
Working of a Democratic Constitution, pp.265ff.
22 1975 SCR (3) 333)


After the decisions of SC in Keshava Nandabharti and Indira Nehru Gandhi cases the
constitution (42nd amendment) act, 1976, was passed which added 2 new clauses, namely
clause (4) and (5) to art 368. Clause (4) provided that no constitutional amendment 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 (50 removed any doubts about the 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 repel of the provisions of the constitution under this article. Thus by
inserting clause (5) it made it clear that even the basic structure of the constitution could be
amended. The constitutional amendments made under article 368 can still be challenged n the
ground that they are destructive of the basic features of the constitution.
In Minerva mills vs. UOI, SC struck down clauses (4) and (5) of article 368 inserted b the
42nd amendment, on the ground that these clauses destroyed the essential feature of the basic
structure of the constitution. Limiting amending power is a basic structure of the constitution.
Since these clauses removed all the limitations on the amending power and thereby conferred
unlimited amending power, it was destructive of the basic structure of the constitution. The
judgement makes it clear that Constitution, not parliament is supreme. Supreme Court has
held that the following are 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

In Sri Kumar Padmaprasad vs. UOI 23, It was held that independent judiciary is the basic
structure of the constitution.

23 AIR 1992 SC 1213


In S P Sampat Kumar vs. UOI24, exclusion of jurisdiction of HC under art 226 in the cases of
administrative tribunal was upheld. This case was overruled by L. Chandrakumar vs. UOI25,
it restored the original position that jurisdiction of HC under art 226 is the basic structure
which cannot be altered by parliament under art. 368.
In Waman Rao v. Union of India26, the Supreme Court held that all amendment to the
Constitution which were made before the judgment of Kesavananda Bharati including those
by which the Ninth Schedule to the Constitution was amended from time to time were valid
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
In M. Nagraj v. Union of India27, the petitioners challenged the Constitutional validity of the
Constitution i.e. 77th Amendment, 81st amendment, 82nd Amendment and 85th Amendment
However, a five Judge Bench of the Supreme Court headed by CJI Shabharwal unanimously
held that these amendments do not violate the basic feature of the Constitution. They are
enabling provisions and only apply to SC and ST. They do not obliterate constitutional
requirements, such as 50% ceiling limit in reservation. Creamy Layer Rule and post based
roster sub-classification between O.B.C. on one hand, and Second STs on the other hand, as
held in Indra Sawhneys case. They do not alter structure of equality codes; therefore, they
are not beyond amending power of Parliament.
In I R Coelho vs. State of TN, it was held that any law placed in the 9 th schedule after April
24th, 1974will be open to challenge.

24 1987 SCR (3) 233

25 1997 (2) SCR 1186
26 (1981) 2 SCC 362
27 AIR 2007 SC 71


The provisions under amendment are very vague & hence require a lot of

No difference between the ordinary bill & the constitutional amendment bill except

for special majority.

No special body for such purpose is present.
States in India have no right to start the constitutional amendment procedure.
No way to solve any deadlock between the two houses of the Parliament. There is no

provision for joint sitting of the house in case of deadlock over amendment bill.
Most part of the constitution can be amendment by way of special majority & simple

majority alone. Only in few cases, states ratification is required.

No time limit given to states for passing the amendment bill involving federal


1. It is the best available method for amendment. It has both the quality of being rigid as

well as flexible. It strikes good balances between the two.

In a developing country like India, the constitution is an instrument of social change

and that is why it has undergone frequent amendments.

3. The detailed and lengthy size of the constitution and its character as a common
constitution of both the Union and States, have also been responsible for the
incorporation of several and frequent amendments.
4. The existing method of Amendment stands justified as a natural necessity of Indias
pluralist society and developing polity.
28 Available at: (last visited on 20th March 2016)

The amendment method has helped the Constitution to change in response to the changes
in Indian society and polity.29



Dr. J. N. Pandey, constitutional law of India,(48th ed., Central Law Agency,

Allahabad, 2011)

G. C. Venkata Subaarao, Jurisprudence and legal Theory, (9th ed., Eastern Book
Company, Lucknow, 2008)

M P Jain, Indian constitutional Law , ( 7th ed., Lexis Nexis, Gurgaon, 2014)

Prof. Dr K.N Chandrasekharan Pillai and Jacob Joseph, Cases and Materials on
Legal method, 1st ed.


29 Available at: (last visited on 20th March 2016)