Constitutional Amendments struck down by the Supreme Court of India

Constitution of a country is the basic norm (Grundnorm, as Hans Kelsen purported) which
includes fundamental principles which lay down the foundation of a society. Though the
phrase 'basic structure' is not explicitly mentioned in the Constitution, this was recognised in
the case of Kesavananda Bharati v. State of Kerala. The 13-judge Constitution Bench of
the Supreme Court in this case said that every provision of the Constitution can be amended
provided the basic foundation and structure of the Constitution remains the same. The judges
in this case mentioned some aspects of the Constitution which could constitute the 'basic
features'. They are:
1. Supremacy of the Constitution
2. Republican and Democratic form of Government
3. Secular character of the Constitution
4. Separation of powers between the Legislature, the Executive and the Judiciary
5. Federal character of the Constitution.

Article 368 of the Constitution of India grants power to Parliament to amend the
Constitution. Various Constitutional Amendments made under the said provision were partly
struck down by the Courts on the ground that the basic structure was damaged. Some of them
are enlisted as under:

Indira Gandhi v. Raj Narain

This case challenged the Section 46 (f) of the 39th Constitutional Amendment Act, 1975.
This amendment inserted Article 329-A which made the elections of President, Prime
Minister, Vice-President and the Speaker of Lok Sabha beyond judicial review by any
court of law. The same can be challenged only before a committee formed by the Parliament.
This was the first case where the landmark decision of Kesavananda Bharati was applied by
the apex court. Clauses (4) and (5) of 329-A was proposed to struck down as it restrains the
standards of free and fair elections which were regarded as a part of the basic structure
of the Constitution. It was said that the only way to reconcile any conflict in an election
petition is by a judicial review and Clauses (4) and (5) of 329-A took away these rights. The
said amendment also destroyed the separation of powers which is an important part of the
basic structure. Thus, the apex court declared the impugned Article 329-A (4) and (5) as
unconstitutional and void.
The apex court said, "Generality and equality are two indelible characteristics of justice
administered according to law. The preamble to our Constitution by which the people of
India resolved solemnly to secure to all its citizens equality of status and opportunity finds its
realization in an ampler measure in Article 14 which guarantees equality before the law and
the equal protection of laws to all persons, citizens and non-citizens alike. Equality is the
faith and creed of our democratic republic and without it, neither the Constitution nor the
laws made under it could reflect the common conscience of those who owe allegiance to
them."

Minerva Mills v. Union of India

In this case Section 4 as well as Section 55 of the Constitution 42nd Amendment Act, 1976
was challenged before the apex court. The court in this case also relied on the majority
decision of the Kesavananda Bharati case upholding the basic structure doctrine. Clauses (4)
and (5) of Article 368 said no amendment made under the said article be questioned in
any court on any ground and that the power to amend the Constitution by the
Parliament has no limitation. The court declared that Section 55 of the Constitution 42nd
Amendment Act as unconstitutional and void since it damages the basic structure and goes
beyond the amending power of Parliament.

The apex court said, "Our Constitution is founded on a nice balance of power among the
three wings of the State, namely, the Executive, the Legislature and the Judiciary. It is the
function of the Judges, nay their duty, to pronounce upon the validity of laws. If courts are
totally deprived of that power the fundamental rights conferred upon the people (will become
a mere adornment because rights without remedies are as writ in water. A controlled
Constitution will then become uncontrolled. Clause (4) of Article 368 totally deprives the
citizens it one of the most valuable modes of redress which is guaranteed by Article 32.
The conferment of the right to destroy the identity of the Constitution coupled with the
provision that no court or law shall pronounce upon the validity of such destruction seems to
us a transparent case of transgression of the limitations on the amending power."

Samba Murthy v. State of Andhra Pradesh

In this case, the writ petition challenged the constitutional validity of the 32 nd Constitution
(Amendment Act) which inserted Clause (5) of Article 371-D of the Constitution. The said
clause dealt with the power conferred on the State Government to modify or annul the
final order of the Administrative Tribunal. The court said it is violative of the basic
structure doctrine since it makes the Administrative Tribunal a less effective and efficacious
institutional mechanism or authority for judicial review. The court said, "We must therefore
hold that the Proviso to Clause (5) of Article 371-D is unconstitutional as being ultra vires the
amending power of Parliament and if the Proviso goes, the main part of clause (5) must also
fall along with it, since it is closely interrelated with the proviso and cannot have any
rationale for its existence apart from the Proviso. The main part of clause (5) of Article 37 I-
D would, therefore, also have to be declared unconstitutional and void."

L. Chandrakumar v. Union of India

This case was regarding Section 46 of the 42nd Constitution (Amendment Act) which
inserted Articles 323 A and 323 B in the Constitution of India. The question arose in the
instant case is whether the Tribunals constituted under Articles 323 A and 323 B possess
the competence to test the constitutional validity of statutory provision. The court found
that the articles excluded the jurisdiction of the High Court and Supreme Court under Article
226/227 and 32 of the Constitution. The court opined, the jurisdiction of the High Courts and
Supreme Court is part of the inviolable basic structure of the Constitution. Since the
Amendment damaged the basic structure, the same was held unconstitutional and void. The
apex court said, "While this jurisdiction cannot be ousted, other courts and Tribunals may
perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32
of the Constitution. The Tribunals created under Article 323A and Article 323B of the
Constitution are possessed of the competence to test the constitutional validity of statutory
provisions and rules."

"we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they
exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227
and 32 of the Constitution, are unconstitutional", observed the Court.

Kihoto Hollohan v. Zachillhu & Ors.

This case came before a 5-judge bench of the Supreme Court regarding the constitutional
validity of the 52nd Constitutional Amendment Act, 1985. The said Amendment Act inserted
tenth schedule and the constitutional validity of the same was challenged before the apex
court. The court observed that para 7 of the tenth schedule enacted a provision for
complete exclusion of judicial review including the jurisdiction of the apex court under
Article 136 and the High Courts under Article 226 and 227 of the Constitution. This was
found to be damaging the concept of judicial review, which was held to be part of basic
structure. Here in this case the apex court applied the Doctrine of Severability to strike down
para 7 alone, retaining the remaining part of the tenth schedule.

Rajendra N Shah v. Union of India (Gujarat HC)

A PIL was _led before the Division Bench of the Gujarat High Court for quashing of the 97th
Constitution Amendment Act, 2011 introducing part IX B containing Articles 243ZH and
243ZT as ultra vires the Constitution of India. The Part IX B of the Constitution (Amendment
Act) 2011 emphasized that the democratic functioning of Cooperative societies had been
accorded a constitutional status. The court said, "one of the basic structures of the
Constitution, viz. the principles of federalism has been affected. There is no dispute that
federalism is one of the ‘basic structure’ of our Constitution. Once the subject of Co-
Operative Societies is in the List II of the 7th Schedule, by depriving the State Legislatures of
their free exercise of the right to enact on the said subject and by curtailment of their right
over the subject matter to abide by the newly enacted provision of the Constitution without
following the requirement of ratification as provided in Article 368(2), the doctrine of
federalism which is one of the basic features of the Constitution has been infringed."

The High Court in this case declared the Amendment as ultra vires the Constitution of India
for not taking recourse to Article 368(2) of the Constitution providing for ratification by the
majority of the State Legislatures. The appeal in the said case is still pending before the
Supreme Court.

Supreme Court Advocates on Record Association v. Union of India

The petition in this case challenged the 99th Amendment Act of 2014 which inserted Article
124-A regarding the appointments of the National Judicial Appointments Commission
(NJAC) on the ground that it violates age old-system of appointment of the Judges of the
Supreme Court and the High Courts through the appointment. The 5-judge bench of the
Supreme Court said, "The 99th Constitution Amendment Act and the NJAC Act not only
reduce the Chief Justice of India to a number in the NJAC but also convert the mandatory
consultation between the President and the Chief Justice of India to a dumb charade with the
NJAC acting as an intermediary. On earlier occasions, Parliament enhanced its power
through constitutional amendments, which were struck down, inter alia, in Indira Nehru
Gandhi and Minerva Mills. The 99th Constitution Amendment Act unconstitutionally
minimizes the role of the Chief Justice of India and the judiciary to a vanishing point in
the appointment of judges. It also considerably downsizes the role of the President. This
effaces the basic structure of the independence of the judiciary by sufficiently altering the
process of appointment of judges to the Supreme Court and the High Court, or at least alters
it unconstitutionally thereby striking at the very basis of the independence of the judiciary."

Thus, the bench in a majority of 4:1 rejected the NJAC Act as well as the 99 th Constitutional
Amendment as "unconstitutional and void". The court further held that the collegium system
that existed before the NJAC would again become operative. Recently, the Supreme Court
Justice Kurian Joseph said that he regretted the decision in the NJAC in which he was a part
of the Constitution Bench wherein the majority struck down the creation of NJAC to replace
the collegium system for appointment of judges.

Prior to Kesavananda Bharati Case

Prior to the 'basic structure doctrine' that was laid down in Kesavananda Bharati in 1973, the
first Constitutional Amendment Act, 1951 was challenged in the case of Shankari Prasad v.
Union of India. The question arose was whether Articles 31A and 31B in the Constitution of
India which was inserted in the Constitution (First Amendment) Act 1951 was ultra vires and
unconstitutional. The apex court held that the power of the Parliament to amend the
Constitution including the Fundamental Rights is evoked in Article 368 of the Constitution
and hence not violative of the provisions of the Constitution. Hence the Articles 31 A and 31
B were held valid. The ruling of Shankari Prasad was upheld by the apex court in Sajjan
Singh v. State of Rajasthan which challenged the 17th Amendment of the Constitution that
added 44 new Acts to the IX schedule. Though in I.C. Golaknath v. State of Punjab to
check the colourable exercise of power and save democracy from autocratic actions of
Parliament, the 6:5 majority of the apex court held that the Parliament cannot amend the
Fundamental Rights.

Post Kesavananda Bharati Case

Post Kesavananda Bharati 'basic structure doctrine' there are also a few cases where the
Constitutional Amendment was held constitutional and valid. In Waman Rao v. Union of
India the apex court said, " In Kesavananda Bharati decided on April 24, 1973 it was held by
the majority that Parliament has no power to amend the Constitution so as to damage or
destroy its basic or essential features or its basic structure. We hold that all amendments to
the Constitution which were made before April 24, 1973 and by which the 9th Schedule to
the Constitution was amended from time to time by the inclusion of various Acts and
Regulations therein, are valid and constitutional."

In M. Nagraj v. Union of India where a writ petition was filed before the Supreme Court to
quash the 77th Constitution Amendment Act 1995, 81st Constitution Amendment Act 2000,
82nd Constitution Amendment Act 2000 and 85th Constitution Amendment Act 2001
amendment in Article 16(4A) (4B) providing reservation in promotion with consequential
seniority as being unconstitutional and violative of the basic structure as well as 77th, 81st
and 82nd Amendment Acts of the Constitution The apex court in this case unanimously
upheld the validity of these provisions since it did not destroy the equality code of the
Constitution. The apex court said, "However, in this case, as stated, the main issue concerns
the "extent of reservation".

In this regard the concerned State will have to show in each case the existence of the
compelling reasons, namely, backwardness, inadequacy of representation and overall
administrative efficiency before making provision for reservation. As stated above, the
impugned provision is an enabling provision. The State is not bound to make reservation for
SC/ST in matter of promotions. However, if they wish to exercise their discretion and make
such provision, the State has to collect quantifiable data showing backwardness of the class
and inadequacy of representation of that class in public employment in addition to
compliance of Article 335. It is made clear that even if the State has compelling reasons, as
stated above, the State will have to see that its reservation provision does not lead to
excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend
the reservation indefinitely.

Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh

Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the
Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty- Fifth
Amendment) Act, 2001.
I. R. Coelho (Dead) By Lrs v. State of Tamil Nadu & Ors. the apex court reaffirmed the
basic structure doctrine laid down in Kesavananda Bharati case. The court also reiterated that
the Articles 14,15,19 and 21 are parts of basic structure.

In Ashok Kumar Thakur v. State of Bihar, SC upheld the 93rd Constitution Amendment
Act, which inserted Article 15(5) in the Constitution to provide for OBC reservation in
educational institutions. At present, a batch of petitions challenging the validity of the 103rd
Constitution Amendment which inserted Article 15(6) to provide for economic reservation is
pending in the Supreme Court.