NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

SUBJECT: HISTORY
TOPIC: HISTORY OF THE CONSTITUTION OF
INDIA

Submitted to: Submitted by:

Prof. (Dr.)U.P. Singh Himanshu Ahirwar
2018 BALLB 88
 ACKNOWLEDGEMENT

This project is the outcome of the guidance and support of some people who if we don’t acknowledge, we'll
be committing a sin...
Firstly, we would like to thank the almighty without whose blessings, this project could not have been
completed.
We convey our heartfelt thanks to Professors whose constant encouragement and being readily
available to clear any doubts regarding the subject matter, showed us the right direction to go ahead in.
We would like to thank the librarian and other staff for providing us the required sources and materials
without which this project would have been just a dream.
We would like to acknowledge our seniors and friends for their enthusiasm and belief in us which
encouraged us to strive forward.
Lastly, we thank our parents without whose constant support and being by our side by thick and thin, this
project could not have been completed

HIMANSHU AHIRWAR
 TABLE OF CONTENTS
INDIA UNDER THE EAST INDIA COMPANY.........................................................................................6

INDIA UNDER THE BRITISH CROWN.....................................................................................................7

THE GOVERNMENT OF INDIA ACT 1858...........................................................................................7
INDIAN COUNCILS ACT OF 1861:.........................................................................................................7
INDIAN COUNCILS ACT OF 1892:.........................................................................................................7
INDIAN COUNCILS ACT OF 1909: MORLEY-MINTO REFORMS.................................................8
THE SIMON COMMISSION-1927:..........................................................................................................9
GOVERNMENT OF INDIA ACT-1935:...................................................................................................9

DRAFTING OF THE CONSTITUTION OF INDIA.................................................................................10

CONSTITUTIONAL AMENDMENTS.......................................................................................................12

BASIC STRUCTURE DOCTRINE.............................................................................................................18

EVOLUTION OF THE THEORY OF BASIC STRUCTURE.............................................................19

CONCLUSION...............................................................................................................................................21

BIBLIOGRAPHY..........................................................................................................................................22
 INTRODUCTION

Constitution is a body of fundamental principles or established precedents according to which a state or

other 0rganizati0n is ackn0wledged t0 be g0verned. C0nstituti0n 0f India is the supreme law in India. It
imparts c0nstituti0n supremacy instead 0f parliamentary supremacy by pr0viding fundamental principles,
rights, and p0wer 0f g0vernment and individual. India has the l 0ngest c0nstituti0n in the w0rld. Indian
c0nstituti0n makers t00k 2 years and 11 m0nths and 18 days t0 draft the Indian C0nstituti0n, but it has g0t a
l0ng and vivid hist0ry. Idea 0f c0nstituti0n came al0ng with declarati0n 0f purnaswaraj back in 1930.
Demand f0r Indian Independence g0t str0nger thereafter. British agreed t0 leave India after the events 0f
W0rld War 2. India was g0ing t0 get l0ng awaited independence but it was never g0ing t0 be an easy task.
C0nstituti0nal assembly was set up t0 draft the c0nstituti0n. It had t0tal 296 members. C0ngress was in
maj0rity in the assembly. M0hammad Ali Jinnah strictly 0pp0sed the idea 0f a nati0n wh0se c0nstituti0n
was being drafted by Hindu maj 0rity party. 0n 9 December 1956, c0nstituent assembly met f0r the first
time. Dr Sacchidanand Sinha was declared as interim President. 0n 11 December Dr.Rajendra Prasad was
elected as the Precident 0f c0nstituent assembly. 0n 13 December Pd. Jawahar Lal Nehru came up with the
pr0p0sal 0f Objective Res0luti0n which later became the Preamble 0f Indian C0nstituti0n. With
Independence came seperati0n 0f India and Pakistan.
Making 0f c0nstituti0n was already in pr0cess then. Dr.Bhim Ra0 Ambedkar was selected as the president 0f
drafting c0mity. The Indian c0nstituent assembly t00k inspirati0n fr0m c0nstituti0ns 0f different c0untries.
The end result was 0ne 0f the finest c0nstituti0n in the w0rld. It was implemented 0n 26 January 1950. The
c0nstituti0n c0nsists 0f 448 articles in 25 parts, 12 Schedules and 5 appendices.
 INDIA UNDER THE EAST INDIA COMPANY

East India C0mpany came up as a trading c0mpany in India, it started its first fact 0ry at surat in 1608. They
gradually increased their military p0wer t0 establish m0n0p0ly 0ver trade in India. EIC g0t the m0n0p0ly
after defeating the Nawab 0f Bengal and his French allies in Battle 0f Plassey1. EIC was granted the diwani
0f Bengal. After battle 0f Buxar, c0mpany was pr0ducing huge revenue but was als0 facing problems of
mismanagement and corruption. Also it acquired a lot of Indian Territory by then. The British government
got ambitious by seeing the company achieve this feat and started planning to bring India under British rule.

REGULATING ACT OF 1773

But in the end the company was being administered by traders and businessmen who had a very little idea to
govern and administer a country, thus in 1773, British government introduced the regulating act of 17732.
Regulating act was the first attempt by British G 0vernment t0 establish administrative system in India. The
act set up written c0nstituti0n f0r British p0ssessi0n in India instead 0f arbitrary rule by the c0mpany. It als0
pr0vided f0r the establishment 0f supreme c0urt in Calcutta. Post 0f governor general, governors and chief
justices were introduced and their salaries were decided. Warren Hastings was appointed the first governor
general. Later some loopholes were discovered in the regulating acts as some important cases, namely Patna
case, trial of Raja Nand Kumar ‘the judicial murder case’, the ‘cossijurah’ case reflected the defects of the
act. There were a lot of conflicts between council and Supreme Court because laws were uncertain and
jurisdictions were not thoroughly specified. Many reforms were introduced to tackle the situation but
problems like lack of uniformity, parallel legislation, faulty drafting and uncertainty continued.

1
Sandeep Hor, ‘Drama in Plassey’ (The Hindu, 14 January 2012)<www.thehindu.com/features/magazine/Drama-in-
Plassey/article13366333.ece> assessed on 26 Aug. 18
2
Darshana Das, ‘Regulating Act’ (Britannica, 29 December 2010)<www.britannica.com/topic/Regulating-Act> assessed on 26
August 2018
 INDIA UNDER THE BRITISH CROWN

In 1857 there was a major rebellion against company rule. The rebellion was a failure because of lack of
leadership, weapons and common objectives. But this made British Government realize that they need a
stronger hold in India and thus Queen Victoria proclaimed that India will be governed under the Crown.
India under the crown

THE GOVERNMENT OF INDIA ACT 1858

In 1857 the governance 0f India was transferred fr0m the C0mpany t0 the cr0wn. This became a major
landmark in constitutional history of India.Secretary 0f State f0r India was vested with the p0wers to
exercise under the cr0wn. The state secretary was assisted by c 0uncil 0f India which had 15 members. State
secretary was also a member of British Cabinet. He was given complete control and authority over Indian
administration, and he was ultimately resp0nsible t0 the British Parliament.

INDIAN COUNCILS ACT OF 1861:

This act bought some major changes, most important of them being involvement of Indian members in
Governor-General’s Executive Council| while transacting legislative business. This act also initiated the
process of decentralization as it restored the legislative powers of Madras and Bombay presidency.

INDIAN COUNCILS ACT OF 1892:

This act introduced the election principle but in an indirect manner. The council members were indirectly
elected although the Governor-General still had the power to nominate them. Power of addressing questions
to the Executive and the power of discussing the budget was vested in Legislative council. The Indian
C0uncils Act 0f 18923 further increased the number 0f members of provincial and central legislative
councils. N0n 0fficial members 0f central c0uncil were n0minated by Calcutta chamber 0f c0mmerce and
Pr0vincial Legislative council. Local bodies, such as the District Boards and Municipal Council nominated
the non-officials members of Provincial council. The councils members were given right to ask questions on
matters of public interest.

3
Soma Banerrjee, ‘Indian Council Act 1892 summary’ (shareyouressays) <www.shareyouressays.com/essays/indian-council-act-
1892-summary/89902> assessed on 26 August 2018
INDIAN COUNCILS ACT OF 1909: MORLEY-MINTO REFORMS

Through this act the name of central legislative council was changed to Imperial Legislative Council, but the
official majority was retained in it. Non official majority was allowed to the Provincial Legislative Council.
This act introduced the concept of separate electorate for the Muslims. Thus Lord Minto 4 came t0 be kn0wn
as Father 0f C0mmunal Elect0rate.
The main features 0f the Act were;
 Expansion of provincial and central legislative councils
 Majority of official members was maintained.
 Separate electorate for Muslim.
 Discussion budget and more resolutions were allowed to all the members.
 Government of India Act of 1919: Montagu-Chelmsford Reforms

This ant demarked and separated the central subjects from the provincial subjects. The provincial and central
legislatures were authorized to make laws on their respective subjects. Thus this act relaxed the central
control over provinces. The Act further divided the provincial subjects into two parts; Transferred subject
and reserved subject.

Governor with the help of ministers responsible to legislative c0uncil administered the transferred subjects.
0n the 0ther hand, the reserved subjects were t0 be administered by the G0vern0r and his Executive C0uncil
with0ut being resp0nsible t0 the Legislative C0uncil. This dual scheme was known as ‘Diarchy’. This
experiment went unsuccessful.
This act introduced direct elections and bicameralism in the country. Upper house (Legislative assembly) of
this bicameral legislature replaced the imperial council. Majority of members were directly elected from
elections for both the houses. Three 0f the six members 0f the G0vern0r General’s c0uncil were to be Indian
according to this act.
Key features of this act were;
 Subject of administration divided among centre and provinces.
 Introduction of the bicameral legislature for the first time.
 Around 70% of the members were elected
 Power was delegated between centre and provinces.
 Two categories of budget were introduced; votable and non votable.
 Half of executive council members were to be Indians (3 of 6)
 4 new offices for the High Commissioner of India were established.

4
V.D Kulshreshtha, Landmarks in Indian legal and constitutional history(eleventh edition 2016, Eastern Book Company, 391)
THE SIMON COMMISSION-1927:
Simon commission5 was appointed by british government to examine the working of Government of India
act. It was under chairmanship of Sir John Simon. The commission faced a lot of criticism and was
boycotted by all the parties as it did not had any Indian member on board. In one of such demonstration
against Simon Commission LalaLajpar Rai received a blow on his head and he died in 1928.
As the Simon commission had no regards for sentiment of Indian people, Motilal Nehru with support of
leading Indian political parties went on to discuss question of framing of a new constitution of India. The
committee refused to grant self government to India under british rule.

GOVERNMENT OF INDIA ACT-19356:

After considering the Simon Commission report ,and on recommendations of other committees, a
comprehensive document was formed which had 321 sections and 10 schedules.
Key Features
 Federal scheme and provincial autonomy
 Diarchy at centre
 Federal(59), provincial(54) and concurrent list was introduced
 Received subjects according to list were administered by Governor General along with counselors
appointed by him
 Six provinces had bicameral legislature while 5 had unicameral
 Legislature at centre was bicameral; Federal assembly and council of states
 Direct election for both houses
 For council of states
Seats were reserved on the basis of importance and rank of state
One third member retires every third year.
Six member nominated by governor general

Governor could authorize either provincial or federal legislature to enact a law with respect to any matter not
present in the list.

5
V.D Kulshreshtha, Landmarks in Indian legal and constitutional history(eleventh edition 2016, Eastern Book Company, 397)
6
Government of India Act, 1935. [26 GEo. 5. CH. 2,]
 DRAFTING OF THE CONSTITUTION OF INDIA

The Constituti0n that we have t0day is n0t the result 0f some disjointed, epis0dic exercises by some
individuals. It has been, in fact, drafted and created by a body of learned people from different walks of life,
specially c0nstituted and c0nvened for the explicit purpose of formulating free India’s Constitution. It may
interest you t0 know that the Constituti0ns 0f m0st 0f the c0untries have been drafted by such
assemblies/bodies.
The C0nstituent Assembly was headed by Dr.Rajendra Prasad wh 0 later 0n became India’s first President.
Jawaharlal Nehru who became the first Prime Minister 0f free India was p0ssibly the m0st prominent figure
0f the Assembly.

Am0ng the 0ther fam0us names, the Assembly comprised luminaries like Dr. B.R. Ambedkar,
SardarVallabhbhai Patel, PattabhiSitaRamayya and J.B. Kriplani. A g00d number 0f the members had
str0ng legal backgr0unds, which most definitely facilitated the task of Constitution-making. The total
strength of the Assembly was 381.

The membership of the Assembly was drawn from different p 0litical parties, m0st imp0rtant 0f which were
the C0ngress and the Muslim League. In additi0n, independent members, representatives fr0m the
G0vern0r’s Pr0vinces and the Princely states were also present.

The c0re 0f the C0nstituent Assembly was the Drafting Committee which was chaired by Dr. B.R.
Ambedkar. It sh0uld, theref0re, n0t surprise y0u that Ambedkar is 0ften described as the Father 0f India’s
depressed classes.

He had an eminent pr0fessi0nal backgr0und and legal expertise and was, thus well- equipped to pil0t the
C0nstituti0n framing pr0cess and t0 deal with the various complexities inevitable in the Herculean task.
Ambedkar influence can be particularly, seen in the special provisions for Scheduled Castes and Tribes (SCs
and STs) that the Constituti0n came t0 inc0rp0rate.

The vari0us provisions 0f the C0nstituti0n were debated at length in the several c0mmittees that were
f0rmed f0r the purp0se. After extensive debates and discussi0ns, these pr0visi0ns were presented t0 the
Assembly f0r due c0nsiderati0n. Based 0n the deliberati0ns in the Assembly, the Drafting C0mmittee
prepared the draft text 0f the Constituti0n.

The final document, after amendments, was signed on November 26, 1949 and came into force two months
later. The Constituent Assembly was a body of accomplished people which laboured assiduously to give to
free India a Constitution that Indians would be proud of. Still the Assembly has been subjected t 0 s0me
criticisms.

The main criticism against the Assembly spearheaded essentially by the Muslim League was that it was a
C0ngress/Hindu d0minated b0dy. Because 0f this belief and c0nvicti0n, the League never participated
enthusiastically in the deliberati0n 0f the C0nstituent Assembly and eventually stayed away.

The C0ngress was led by Jawaharlal Nehru wh0 was a dem0crat t0 the c0re. He made all0wance f0r every
0pini0n and never tried t0 bulld0ze his 0r the C0ngress Party’s p0siti0n 0n vari0us issues. M0re0ver, the
chairman 0f the C0nstituti0n Drafting C0mmittee, Dr.Ambedkar was als0 a dem0crat every inch 0f the way
and permitted all members t0 have their say.

The C0nstituent Assembly c0mpleted the task 0f C0nstitution-making within a period of three years,
whereas several other countries took several years to have their first Constitution. Also, it goes to the credit
of the Assembly that the Constitution of free India was never abrogated and a new one introduced.
 CONSTITUTIONAL AMENDMENTS

There are many things that make the Constitution of India unique. The provision that allows amendment of
the constitution is one of these wonderful features of the supreme law of the land. According to Article
368(1) of The Constitution of India, 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.
The makers of our constitution believed no law could be engraved in stone. They were of the belief that law
is an evolutionary process. As time demands the law has to be modified accordingly in order to ensure the
welfare of the society. To ensure this, the above-mentioned provision was included in the Constitution which
allowed the law makers of the country to mould the constitution appropriately as and when the need arose.
This provision, over the years, has turned out to be of crucial importance as it has come into use a several
times. Seventy-one years into independence, our lawmakers have amended the constitution over a hundred
times, which indicates how the law has evolved over these years.
The process of amendment is extremely complex. An amendment bill has to be passed by majority in both
the houses and then he president gives his/her assent. Once the President of India gives his assent, the
constitution stands amended. Given below are a few amendment acts which are of major importance to the
Indian Constitution.

The Constitution Passed in June 1951, the main purpose of the Act was to remove the
(First Amendment) practical difficulties created by court decisions in certain cases such as:
Act, 1951 Kameshwar Singh Vs State of Bihar, BrijBhushan Vs. State of Delhi
etc.Numerous issues were involved in these cases. Such as: the scope of
fundamental right of the freedom of speech, acquisition of the Zamindari
land, trade and state monopoly etc.

The Constitution (Fourth Article 31 and Art. 31A were amended. As a result of these amendments
Amendment) Act, 1955 the adequacy of the quantum of compensation paid for the compulsory
acquisition of property for “public purpose” could not be questioned in
the court of law.

The Constitution (Twelfth Main objective of this amendment was to add the union territories of Goa,
Amendment) Act, 1962 Daman and Diu to the Union of India. For this 1st schedule of the
constitution was amended.

The Act provides for the creation of the state of Nagaland as the 16th state of
Union of India.
Constitution (Thirteenth
Amendment) Act, 1962

The Incorporation of the French Establishments in India under the name of

Pondicherry.Also, seats assigned to the Union territories for Lok Sabha
Constitution (Fourteenth
increased to 25 from 20.
Amendment) Act, 1962

The Creation of new states of Punjab and Haryana as a result of the

reorganization of former state of Punjab, Haryana and Himachal Pradesh.
Constitution (Eighteenth
Amendment) Act, 1966

The Constitution (Twenty- Passing of Assam Reorganization (Meghalaya) Act, 1969 for the creation
Second Amendment) Act, of autonomous hill state of Meghalaya, within the state of Assam.
1969

The Constitution (Twenty- Amends art.13 and 368with a view of removing all possible doubts
Fourth Amendment) Act, regarding the power to amend the Constitution. This acts over rules the
1971 verdict given in Golak Nath Case.

The Constitution (Twenty- Added a new clause Article 31 to the constitution. Before this
fifth Amendment) Act, amendment the primacy was given to Fundamental rights over directive
1955 Principles of state policy. After 25th Amendment this was changed to
some extent by conferring primacy to Article 39(B) and Art. 39(C) over
articles. 14, 19 and 31.

The Constitution (Twenty- Abolition of Art. 291. End of recognition granted to the former rulers of
Sixth Amendment) Act,
1971 the princely states and abolition of Privy Purse.

The Constitution (Thirty- Makes few special provisions for the state of Andhra Pradesh to satisfy
Second Amendment) Act, the aspirations of the people of Telangana region.
1973

The Constitution (Thirty- 35th Amendment conferred Sikkim with the status of an associate in the
fifth and Thirty-Sixth Union of India.36th amendment 1975 conferred fully fledged statehood on
Amendment) Acts, 1974- Sikkim.
1975

The Constitution (Thirty Introduced changes in the method of deciding election disputes relating
Ninth Amendment) Act, to the four high officials of the state. The President, The Prime Minister,
1975 The Vice President, the speaker. Under Art. 71(2) parliament was to
establish some kind of “authority” to decide disputes and its decision
cannot be challenged inn any court of law.

The Constitution (Forty This amendment act of the Indian Constitution is one of the most
Second Amendment) Act, important activities in this field. A volley of changes was made in the
1976 constitution. It touched almost all the sensitive issues. It is sometimes
called as “mini constitution”. The Act inter-alia gave preponderance to
Directive Principles of State Policy over Fundamental rights, curtailed
the power of Judiciary and established the supremacy of parliament. An
over view of the amendments brought about by this Act are as follows:

1. Preamble:

“Sovereign Democratic republic was changed to “Sovereign Socialist

Secular Democratic Republic”.

The words “Unity of Nation” was changed to “Unity and Integrity of

Nation”
 2. Executive:

Art. 74 was amended to state explicitly that the President shall act in
accordance with the advice of the Council of Ministers in discharge of
his functions.

3. Judiciary:

 Inserted Art.32A in order to deny Supreme Court the power to

consider the constitutional validity of a state Law.

 Art. 131A added. Gave SC exclusive jurisdiction to determine

question relating to the constitutional validity of a central Law.

 Art. 144A and Art. 128A made further innovation in the area of
judicial review of constitutionality of legislation. Under Art.144A
the number of judges of SC to decide on the constitutional validity
of a central or state law was fixed as at least 7 and further this
required a 2/3rd majority of the judges sitting to declare a law as
unconstitutional

4. Federalism
:
Art. 257A. Centre could deploy any armed force of the union or any
other force under its control for dealing with any grave situation in any
state.

5. Fundamental Rights;

Primacy to directive principles over Fundamental rights contained in

Art.14, 19 or 31.

6. Fundamental Duties:

Inserted Art. 51 –A to create a new part IV-A in the Constitution as

Fundamental Duties.
 7. Emergency:

Prior to this Act, President could declare emergency under Art. 352
throughout the country. This Act authorized the President to proclaim
emergency in any part of the country.

The dominant thrust of this Amendment was to reduce the role of courts
and strengthen the Parliament.

The Constitution (Forty- Passed in 1978, it undid most of the distortions introduced in the
Fourth Amendment) Act, constitution by the 42nd Amendment.The salient features of this Act were
1978 as follows:

1. Reduced the life of Lok Sabha and state legislative assemblies

back to 5 years.

2. Cancelled 39th amendment which deprived the SC to decide

disputes concerning the election of President and Vice President.

3. A new provision was added to Art. 74(1) saying President could

require the Council of ministers to reconsider their advice to him
and the President should act in accordance to the advice tended to
him after such reconsideration.

4. Art 257 A was omitted.

5. Right to property was taken out of the Fundamental rights and

declared as a legal right.

The Constitution (Fifty- Arunachal Pradesh was elevated to the status of State.
Fifth Amendment)
Act, 1986
The Constitution With Goa, Daman and Diu reorganization Act, 1987, Goa was elevated to
(Fifty- Seventh be the 25th state of Union of India.
Amendment) Act,
1987
The Constitution (Sixty- Voting age was reduced from 21 years to 18years for Lok Sabha
First Amendment) assembly elections.
Act, 1988
The Constitution (Sixty- Art. 338 was amended for the constitution of a National Commission for
Fifth Amendment) Act, Scheduled Castes and Scheduled Tribes consisting of a chairperson
1990 appointed by the president.
The Constitution Grants Statehood to Delhi as “National Capital Territory of Delhi”.
(Sixty Ninth
Amendment)
Act,
1991
The Constitution (Seventy Passed by the Parliament on 22nd December 1992 and ratified by the
State
Third Amendment) Act,
Legislature and assented by the President, the Act gave constitutional
1992
legitimacy to the Panchayati Raj Institutions.Part IX was added to the
constitution with the addition of Art. 243A and the Eleventh Schedule
enumerating the powers and functions of the Panchayati
Raj
institutions.The act provides for Gram Sabha, reservation of seats for SC
& STs in proportion and reservation of 1/3rd of seat for Women.
The Constitution New clause (4-a) was added to the Art. 16 which empowered the state to
(Seventy- Seventh make any provision for reservation in promotions in Govt. jobs in favour
Amendment) Act, 1995 of SCs and STs. This was done to nullify the effect of SC judgment in
Mandal Commission Case where the Court has held that reservations in
promotions cannot be made.
The Based on the recommendation of the 10th Finance Commission,
an
Constitution (Eightieth alternative form of sharing taxes between the Union and State was
Amendment) Act, 2000 enacted.Under this scheme of devolution of revenue between the Union
and States, 26% of gross proceeds of Union taxes and duties is to be
assigned to the states in lieu to the already existing share in the income
tax, excise, special excise duties and grants in lieu of tax on
railway
passenger fare.
The Constitution (Eighty- Art. 21A was inserted making the right to free and compulsory education
Sixth Amendment) for children between 6 to 14 years a fundamental right.The act amends
Act, 2002 Part III, Part IV and Part IV (A) of the constitution.
The Constitution (Ninety- Providing reservation for the Other Socially and Educationally backward
Third Amendment) classes, besides SCs and STs, in Private unaided educational Institutions.
Act,
2005
The Constitution (Ninety- Added the words “or co-operative societies” after the word “or unions”
Seventh Amendment) Act, in Article 19(l) (c) and insertion of article 43B i.e., Promotion of Co-
2012 operative Societies.The objective is to encourage economic activities of
cooperatives which in turn help progress of rural India.
The The most recent important amendment came with the implementation of
the GST, where consumers would not be subjected to double/ multiple
Constitution (Hundred
taxations. All taxes that are imposed while purchasing goods will include
and first Amendment)
both the central government’s taxes as well as the state government’s
Act, 2016
taxes. The introduction of GST has deterred the state governments from
randomly increasing taxes.

BASIC STRUCTURE DOCTRINE

The Indian constitution is essentially a written constitution. The framers of the constitution took a fair length
of period on discussing each and every provision while drafting the constitution. they debated on the social,
political and practical implication of each provision. Even while drafting it to perfection, they realized that
with passage of time, the constitution might need some alterations .as such, the constitution as it stood in the
year 1950-51, incorporated the provision of “amendment”7.
While the Constitution 8 empowers the parliament to amend the constitution, by following the special
procedure prescribed therein, it does not help to alter the sacrosanct spirit of the constitution. There are
certain systematic principles underlaying and connecting the provisions of the constitution, that they make it
in an organic whole. In other words, they are not open to amendment.
Such principles form the ‘basic structure’ of the constitution. More importantly, this is true in respect of
other written constitutions like the German and American constitution as well.
The theory of basic structure is based upon the concept of constitutional identity. The supreme court has
observed that “one cannot legally use the constitution to destroy itself.”
The word amendment postulates that the old constitution survives, without loss of its identity despite the
change, and it continues even though it has been subjected to alteration. To destroy its identity is to abrogate
the basic structure of the constitution. The theory of basic structure reinforces the people of constitutional
sovereignty .

EVOLUTION OF THE THEORY OF BASIC STRUCTURE

This theory was propounded by the apex court while interpreting Article 365 – ‘power and procedure
therefore’
Article 365, as it stands today has itself undergone two changes, through the 42nd amendment, as the apex
court, while initially interpreting the same, opined that the article contained only the procedure, while power
to amend was to be found somewhere else. The effort was to squeeze the power to amend as much as
possible. The 42nd amendment inserted clause 4 and 5 , which were the dark effects of emergency , only to
be struck down later.
The journey of article 68 through the apex court
Shankari Prasad v U. O. I.9
The First Amendment to the constitution was challenged but taking a liberal view, it was held that A. 368
empowered the parliament to amend the constitution without any exception whatsoever
There after the 4th and 7th amendments affected part III of the Constitution.
Sajjan sing vs State of Rajasthan 10
Any enactment in the IX Schedule cannot be challenged on the ground that it violates Fundamental
Rights. The 17th Amendment added several enactments to the IX Schedule, and this was challenged. The

7
Article 368 of the Constitution of India.
8
Ibid.
9
(1951) AIR SC 458.

10
(1965) AIR SC 845
Supreme Court held that, the power to amend the Constitution included even the power to take away
fundamental rights under Part III. Art.13(2) would not include “law” made in exercise of the constituent
power. If it did, Fundamental Rights could never be abridged or taken away. The 17th Amendment was
upheld by 3:2. Thus the view taken in 1965 was that a Constitutional Amendment could take away or
abridge even Fundamental Rights.

Golaknath I.C v state of Punjab11

Two years later the supreme court took a diametrically opposite view in the historic Golaknath case. A
bench of eleven judges heard this case and by a majority of 6:5 it was held that the power under A.368 could
not abridge or take away any of the fundamental rights in part III . the earlier decisions were overruled.
After this decision it became impossible for parliament to pass any law which would amend or alter
fundamental rights. The constitution 24th Amendment act was passed to get over the Golaknath’s decision
the amendment inserted clause three to nullify the effect of A.13 and A.368. similarly 25th, 26th and
29thamendment , saw the parliament trying to undo the effect of Golaknath.

Keshavanand Bharti v. State of Kerala12

A 13 judges bench considered the constitutional validity of the 24th 25th and 29th amendments. By a majority
of 9 judges, it was held that the constitution could be amended without altering its basic structure. The court
did not precisely define this term. However the judgement does clarify some principles of the constitution t
formulate its basic structure.
1. Supremacy of the constitution
2. Sovereignty of India
3. Republican and democratic form of government .
4. Free and independent
5. Federal structure
6. Secular state
7. Parliamentary form of government
8. Separation of powers between legislature executive and judiciary.
9. Dignity of the individual secured by fundamental rights in part III

Over the years the scope of this expression has been considered in numerous cases. It keeps expanding day
by day.

11
(1967) AIR SC 1643.
12
( 1973)AIR SC 1461.
Judicial review under the constitution13 is a part of the basic structure. The further cases of Indira Gandhi V.
Raj Narain14 and Minerva mills V. Union Of India15 case held that clause 4 and 5 of Article 368 were
unconstitutional as they transgressed the limits of the amending power destroying the basic structure.
Thus the power to amend the constitution can be exercised within the four corners of the doctrine of Basic
Structure.

CONCLUSION

The Indian constitution has a long and vivid history. It signifies our freedom which was hard earned. It also
signifies the struggles of our freedom fighters, who gave up their lives to present us the most auspicious gift

13
Article 226/227 of the Constitution of India.
14
1975 AIR 865
15
1980 AIR SC 1789
of freedom. The apex document was drafted by some of most intelligent minds that India has ever produced
like Dr. KM Munshi and Dr Bhim Rao Ambedkar. The dream of free India governed by its own people was
never new but it took time and hard work for our constitution makers to shape it thoroughly. The
constitution makers kept in mind the diversity of country. The Preamble which is heart and soul of Indian
constitution states that India will be a sovereign, secular, democratic republic. The Indian constitution
imbeds in itself the true spirit of democracy. What makes our constitution unique is its rigid yet very flexible
nature. Constitution gives power to the government to amend itself. Till date it has been amended 101 times.
Our constitution makers understood the ever changing nature of law and society. It also provides directive
principles which give positive obligations to state. They shall be kept in mind while making any law. The
Constitution also specifies the fundamental duties of a citizen. Seven decades have passed since the Indian
constitution was enacted and it has withstood the test of time and its importance and need is never going to
diminish.

BIBLIOGRAPHY
 Books
 Constitution Of India, Bare Act
 Basu DD, Shorter Constitution of India (14th edn2009)
 Datar AP, Constitution of India (Millennium2001)

 Websites and Databases

 SCC online
 Manupatra
 www.google.com
 www.indiakanoon.com