The Union Executive: Articles

52 to 78 and 123 Under Indian

Constitution

Parliamentary form of Government

Before talking of the Parliament and Union Executive, let us understand the
form and nature of the Indian government. The Structure of the Indian
government can be understood by the following flow chart:

Parliamentary form of Government

Before talking of the Parliament and Union Executive, let us understand the
form and nature of the Indian government. The Structure of the Indian
government can be understood by the following flow chart:
The President (Article 52)
The first and foremost part of the Executive is the President. Article 52 states
that there shall be a President of India. The President is considered the
Executive head of the country. All the Executive business of the country is
carried out in the name of the President.

Executive powers

Article 53 of the Indian Constitution states that all the executive powers of the
Union will be vested in the President of India. President is allowed to exercise
his executive powers through officers subordinate to him, directly or indirectly,
in consonance to the provisions of the Constitution.

Under this article, the President has powers regarding:

 Appointment of the high authorities of the Constitution like the Prime

Minister and the Council of Ministers;
 Right of being informed about all the national affairs;
 Appointment of the judges of the constitutional courts(Supreme Court and
High Courts);
 Appointment of the state Governors, the Attorney General, the
Comptroller, and Auditor General, the Chief Commissioner and members
of the Election Commission of India;
  Administration of Union territories and appointment of the Chief
Commissioners and Lieutenant Governor of the Centrally Administered
Areas;
 Removal of the Council of Ministers, the state Governors, the Attorney
General.

Military powers

Article 53 also states that the President shall be the Supreme Commander of all
the Armed Forces of the Union of India. It also states that no specific provisions
can reduce the scope of this general principle.

As the Supreme Commander of the Armed Forces of the Union, President has
powers regarding:

 Appointment of all the officers, including the appointment of the chiefs of

the forces;
 Wars are waged in the name of the President;
 Peace is concluded in the name of the President.

Diplomatic powers

The President forms the face of Indian diplomacy and helps the nation to
maintain cordial relationships with countries across the globe. 

 All the Ambassadors and high commissioners in foreign nations are his
representatives;
 He receives the credentials of the Diplomatic representatives of other
nations;
 Prior to ratification by Parliament, the treaties and agreements with other
nations, are negotiated by the President.

Legislative powers
The President also enjoys certain legislative powers like:

 During the budget session, the President is the first to address the
Parliament;
 The President is empowered to summon a joint session in order to break
the deadlock in the legislation process between the two Houses of the
Parliament;
 President sanction is mandatory in cases of provisions relating to: 

1. creating a new state;

2. changes in the boundary of existing states;
3. a change in the name of a state.

 Legislative provisions relating to fundamental rights of the citizens of India

require the President’s consent;
 President’s consent is mandatory in cases of money bill originating in Lok
sabha;
 President’s consent is necessary for all the bills passed by the Parliament
to become a law;
 President is empowered to promulgate ordinances when the Parliament is
not in session;
 President also nominates the members of both the Houses.

Ordinance making power of the President: Article 123

Article 123 talks about the presidential powers to promulgate ordinances. An

ordinance can be promulgated if:

 neither of the House of the Parliament is in session;

 and the President feels a need for immediate action.

The ordinance which is promulgated by the President will have the same effect
as that of an act or law of the Parliament.
The essential conditions to be met by an ordinance are:

 It shall be presented before both the Houses of Parliament for passing

when it comes to the session;
 The ordinance shall cease to operate six weeks after the date of
reassembling of the parliament;
 The ordinance may also expire if the resolutions disapproving it are
passed by both the Houses of Parliament;
 It can be withdrawn at any time by the President;
 The ordinance must be in consonance to the Constitution of India else it
shall be declared void.

Financial Roles

 President receives reports of the Finance Commission and acts on its

report.
 The Contingency Funds of India are at the disposal of the President.
 He also causes the presentation of audits in the Parliament.

Judicial powers

The President enjoys the following privileges as his judicial powers:

 He can rectify the judicial errors;

 He exercises the power of grant of pardons and reprieves of punishments;
 President can seek the advice of Supreme Courts on:

1. Legal matters,
2. Constitutional matter,
3. Matters of national importance.

Pardoning power: Article 72

Article 72 provides for the provisions relating to the pardoning powers of the
President. President can grant pardons, respites, reprieves, and remissions of
punishments or remit suspend or commute the sentence given to a person by
the court in the following cases:

 When the sentence is granted through a court-martial;

 When the sentence or punishment is given for offense of violation of any
law relating to matters that fall in the ambit of Union’s executive powers;
 When a death sentence is passed by a court.

Emergency Powers

Article 352 of the Constitution of India grants President, three kinds of

emergency powers as well:

 When a National Emergency is declared in case of external aggression or

internal armed rebellion, the President holds the powers to declare a state
of emergency. Thus the President’s rule gets established in the country.
However, the prime minister and the Council of Ministers must
recommend such an emergency;
 When there exists a constitutional or law and order breakdown situation in
a state, the President may declare a state of emergency in such cases.
The state would then come under Governor’s rule;
 Whenever the financial stability of the nation or any country is seriously
affected, the President has the right to intervene and direct the state to
check and maintain public expenditure.

The Vice President (Article 63)

Article 63 talks about the vice president of India.
 Functions of the Vice-President
There are some important functions and duties to be performed by the Vice-
President of India. Article 64 and Article 65 of the Indian constitution talks
about the following functions:

 The Vice-President is the ex-officio Chairman of Rajya Sabha(the Council

of States);
 The Vice President casts his vote in case of a tie in Rajya Sabha;
 The Vice President represents the Council of States on ceremonial
occasions;
 He protects the rights and privileges of the members of the Rajya Sabha;
 He travels, for goodwill missions, to foreign countries;
 The Vice-President shall perform the functions of President, in cases
where the President is not able to perform his functions due to absence or
illness etc until the President resumes his duty;

The Council of Ministers 

Article 74 of the Indian constitution states that:

 There should be a Council of Ministers to aid and advise the president;

 The Council of Ministers must have a Prime Minister at the head to aid and
advise the President;
 The President should exercise his functions and act in accordance with
advice rendered by the Council of Ministers;
 The Council of Ministers should reconsider any advice sent back by the
President;
 The President is bound to act in accordance with the advice tendered by
the Council, after reconsideration.
The Attorney-General of India
Article 76 and Article 78 speaks of the Attorney General of India. The Attorney
General of India is the highest law officer in the country. 

The Attorney General is appointed by the President and holds the office at the
pleasure of the President.

The person to be appointed as the Attorney General of India must be qualified

to become a judge of the Supreme Court of India.

Functions and Duties of Attorney-General

Article 76(2) and (3) defines the functions and duties of the Attorney General of
India. Article 76(2) states that:

 Attorney General can give advice to the Government of India regarding

legal matters assigned to him by the President;
 He must also perform other duties of any legal character that are assigned
to him by the President;
 He also has to discharge the functions given to him by the Constitution or
any other legislation.

Whereas Article 76(3) states that in the performance of his official duties:

 The Attorney General can appear on behalf of the Government of India in

the Supreme Court, in cases where the Government of India is a party
concerned;
  He also has to appear on behalf of the government, in regards to
references made by the President before the Supreme Court under Article
143 of the Constitution;
 He has to appear on behalf of the government in any case in the High
Court, where the Government of India is a party in concern.

Conclusion 
Wherefore, the Union Executive is one of the most important organs of the
Indian democracy. It forms the soul of our Indian administrative system. Union
executive act as the strong shoot for all the branches of administrative and
executive bodies. The Constitution-makers have assembled together all the
provisions needed to form a strong and responsible executive system for our
nation. Thus, it makes it important for the citizens as well to coordinate with the
executive for the better functioning of our Indian democratic system.
Q.
The Composition of The Union Executive
The Union Executive comprises of

 President
 Prime Minister
 Council of Ministers
The president is the nominal executive whereas the Prime
Minister is the real executive. Let us know about the
qualifications, functions and powers of the members

The President
Qualifications of The President

 Should be a citizen of India

 Should have completed 35 years of age,
 Should have qualifications similar to the members of the Lok
Sabha.
 Should be of sound mind.
Functions of The President

The functions of the President can be studied under two heads

 Legislative Functions
 Executive Functions
Legislative Functions

 To summon, prorogue or dissolve the Parliament

 To address the first session of the Parliament ( The ”
Presidential speech”)
 Nomination of 9 Anglo- Indian members to Lok Sabha and
appoint 12 members of Rajya Sabha.
 To access every bill to be passed by the Parliament and the
power to withhold a bill. Also known as the ” Veto Power”
Executive Functions

 All the administrative work is carried out in the name of the

President
 Appointment of Prime Minister and the Council of Members“`
 Approval of members of Union Public Service Commission
and National Commission for Women

Powers of the President

Financial Powers
 Any financial bill has to go through the President before being
presented in the Parlament.
 Appointment of members of the Financial Commission and
Planning Commission
 Consolidated fund is in the name of the President
Judicial Powers
 Pardoning the sentence of a convict declared by the Supreme
Court
 After consulting with the Chief Justice of India, the President
appoints the judges of the Supreme Court and High Court.
Military Powers

 He acts as the supreme commander of Armed Forces

 The power to declare war or peace rests with the President
 Appoints the Chief of Army, Navy as well as Air Force

Emergency Powers
 Power to Declare National Emergency: When the security of
the country is threatened due to war or external aggression, The
President has the power to declare National Emergency in
accordance with Article 352 of the Constitution.
 Power to Declare State Emergency: In case of a complete
breakdown of constitutional machinery, a ” President Rule”
can be imposed by the State under the recommendations of the
Governor of the concerned State in accordance with Article
356 of the Constitution.
 Power to Declare Financial Emergency: If the financial
stability and the prestige of a nation are threatened, President
may impose financial emergency under Article 360 of the
Constitution.

Prime Minister and The Council of Ministers

The Prime Minister is elected from amongst the members of the
Lok Sabha amongst themselves. Under the Article 73 of the
Constitution, He acts as the head of the Council of Ministers.
He is the Head of the Government and is responsible for its
actions.

Functions and Powers

 Acts as a link between President and the Parliament
 Recommendations to the President regarding the appointment
of Ministers of the Cabinet
 Acts as the Chairperson during the cabinet meetings
 Enjoys a term of 5 years during which he has the power to
dissolve the Lok Sabha
 Recommends the President to appoint the Heads of highest
constitutional bodies, commissions, judges, Governers, Chief
of Navy, etc.
THE UNION LEGISLATURE

The Parliament of India consists of the President and two houses. The lower
house is called the House of the People- Lok Sabha, while the upper house is
known as the Council of States- Rajya Sabha.

The council of ministers shall be composed of not less that 250 members, of
whom 12 shall be nominated by the President and the remainder 238 shall
be representatives on the States and Union Territories elected by the
method of indirect election.

1. Nomination- The 12 nominated members shall be chosen by the

President from amongst persons having special knowledge or
practical experience in literature, science, art and social service.
2. Representation of States. The representatives of each State
shall be elected by the elected members of the Legislative
assembly of the State in accordance with the system of
proportional representation by means of the single transferable
vote.
3. Representation of Union Territories. The representatives of the
Union Territories shall be chosen in such a manner as
Parliament may prescribe. Under this power the Parliament has
prescribed that the representatives of Union Territories to the
Council of States shall be indirectly elected by members of an
electoral college for that territory, in accordance with the system
 of proportional representation by means of the single
transferable vote.
I. COMPOSITION OF THE HOUSE OF THE PEOPLE

The House of the People has a varied composition and the Constitution
prescribes a maximum number as follows:

1. Not more than 530 representatives of the States

2. Not more than 20 representatives of Union Territories
3. Not more than 2 members of the Anglo-Indian community,
nominated by the President, if he is of the opinion that the Anglo
Indian community has not been adequately represented in the
House of the People.
1. The representatives of the States shall be directly elected by the
people of the state on the basis of adult suffrage. Each citizen
who is not less than 18 years of age and is not otherwise
disqualified, e.g. by reason of non-residence, unsoundness of
mind, crime or corrupt illegal practice, shall be entitled to vote at
such election.
There shall be no reservation of seats for any minority community other
than the Scheduled Castes and Tribes.

2. The members of the Union Territories are to be chosen in such

manner as Parliament may by law provide.
3. Two members may be nominated from the Anglo-Indian
community the President to the House of People if he is of the
opinion that the Anglo Indian community has not been
adequately represented in the House of the People.
The election to the House of People being direct, requires that the
territory of India should be divided into suitable territorial
constituencies, for the purpose of holding such election.

PROPORTIONAL REPRESENTATION FOR THE COUNCIL OF

STATE

1. There shall be allotted in each State a number of seats in the

House of the People in the manner that the ratio between that
number and the and the ratio between that number and the
population of the state is, so far as practicable, the same
throughout the state.
2. Each state shall be divided into territorial constituencies in such
manner that the ratio between the population of each
constituency and the number of seats allotted to it, so far as
practicable, the same throughout the state. 
PROPORTIONAL REPRESENTATION FOR THE COUNCIL OF
STATES

As regards the Council of States, proportional representation by single

transferable vote has been adopted for the indirect election by the
elected members of the Legislative assembly of each State in order to
give some representation to minority communities and parties.

Similarly proportional representation is prescribed for election to the

legislative council of a State by electorates consisting of
municipalities, district boards and other local authorities and of
graduates and teachers of three years standing resident in the State.

II. DURATION OF HOUSES OF PARLIAMENT

 1. The Council of States is not subject to dissolution. It is a
permanent body, but as 1/3 of its members retire on the
expiration of every second year, in accordance with the
provisions made by Parliament in this behalf. It follows that there
will be an election of 1/3 of the membership of the Council of
States at the beginning of every third year.
2. The nominal life of the House of people is 5 years, but it may be
dissolved earlier by the president.
The normal term may be extended by an Act passed by the
Parliament itself during the period when a 'Proclamation of
Emergency' remains in operation. The extension however cannot be
made for a period exceeding one year at a time and in any case, such
extension cannot continue beyond a period of six months after the
Proclamation of Emergency ceases to operate.

III. QUALIFICATIONS/DISQUALIFICATIONS FOR MEMBERSHIP

OF PARLIAMENT

In order to be chosen as a member of Parliament, a person

1. must be a citizen of India
2. must be not less than 30 years of age in case of Council of
States and not less than 25 years of age in the case of House of
the People.
Additional qualifications maybe prescribed by Parliament by law. A
person shall be disqualified for being chosen as, and for being, a
member of either house of Parliament-
1. If he holds any office of profit under the Government of India or
the Government of any State (other than an office exempted by
Parliament by law) but not a Minister for the Union or for a State.
2. If he is of unsound mind and stands so declared by a competent
court
 3. If he is an undischarged insolvent;
4. If he is not a citizen of India or has voluntarily acquired
citizenship of a foreign State or is under acknowledgement of
allegiance or adherence to a foreign power;
5. If he is so disqualified by or under any law made by parliament
If any question arises as to whether a member of either House of
Parliament has become subject to any of the above disqualifications,
the President's decision, in accordance with the opinion of the Election
Commission shall be final.

IV. POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT

AND ITS MEMBERS

The privileges of each house maybe divided into two groups- a. those
which are enjoyed by the members individually, and b. those which
belong to each House of Parliament, as a collective body.
1. The privileges enjoyed by the members individually are
1. Freedom from arrest- The Civil Procedure Code exempts a
member from arrest during the continuance of a meeting of the
Chamber or Committee thereof of which he is a member or of a
joint sitting of the Chambers or Committees, and during a period
of 40 days before and after such meeting or sitting. This
immunity is, however, confined to arrest in civil cases and does
not extend to arrest on criminal case or under the law of
preventive detention.
2. Freedom of attendance as witness. A member cannot be
summoned, without the leave of the House, to give evidence as
a witness while Parliament is in session
3. Freedom of speech- There is freedom of speech within the walls
of each house in the sense of immunity of action for anything
 said therein. While an ordinary citizen's right to speech is subject
to the restrictions specified in Atr19(2) such as the law relating to
defamation, a Member of Parliament cannot be made liable in
any court of law in respect of any thing said in Parliament or any
Committee thereof. This however does not mean unrestricted
licence to speak anything that a member may like, regardless of
the dignity of the House. The freedom of speech is therefore
'subject to the rules' framed by the House under its powers to
regulate its internal procedure.
The Constitution imposes another limitation upon the freedom of
speech in parliament, namely there will be no discussion in Parliament
with respect to the conduct of any Judge of the Supreme Court or of
the High Court in the Discharge of his duties except upon a motion for
presenting an address to the President praying for the removal of the
Judge.
1. The privileges of the House collectively are-
1. To exclude strangers from the galleries anytime.
2. To regulate its internal affairs. Each House of Parliament has the
right to control and regulate its proceedings and also to decide
any matter arising from within its walls, without the interference
of the Courts.
3. To punish members and outsiders for breach of its privileges.
The punishment may take the form of admonishment, reprimand
or imprisonment.
V. PROCEDURE RELATING TO BILLS

A Bill other than money or financial bills may be introduced in either

House of Parliament and requires passage in both Houses before it
can be presented for the President's assent. A bill may be introduced
either by a minister or by a private Member. Unless published earlier,
the bill is published in the official gazette as soon as may be after it
has been introduced.

MOTIONS AFTER INTRODUCTION

After a bill has been introduced the Member in charge of the Bill may
make on of the following motions in regard to the Bill.

1. That it be taken into consideration

2. That it be referred to a select committee
3. That it be referred to a Joint committee of the House with the
concurrence of the other House.
4. That it be circulated for the purpose of eliciting public opinion
thereon.
REPORT BY SELECT COMMITTEE

A Select Committee of the House considers the provisions of the bill

and submits its report to the House. After the report is received, a
motion that the Bill as returned by the Select Committee be taken into
consideration lies. When such a motion is carried, the clauses of the
Bill are open to consideration and amendments are admissible.

PASSING OF THE BILL IN THE HOUSE WHERE IT WAS

INTRODUCED

When a motion that a bill that the bill be taken into consideration has
been carried and no amendment of the Bill has been made or after the
amendments are over, the Member in charge may move that the bill
be passed. After this motion is carried, the Bill is taken as passed so
far as that House is concerned.

PASSING IN THE OTHER HOUSE

When a Bill is passed in one House, it is transmitted to the other

House. It then goes through all the stages as in the originating House
subsequent to its introduction. The House which receives the Bill from
another House can, therefore, take either of the following courses

1. It may reject the Bill altogether. In such a case provisions of

Art.108(1) (a) as to joint sitting may be applied by the President.
2. It may pass the Bill with amendments. In this case, the Bill will be
returned to the originating House. If the House which originated
the Bill accepts the Bill as amended by the other House, it will be
presented to the Presented for his assent. If however the
originating House does not agree to the amendments made by
the other House and there is final disagreement as to the
amendments between the two Houses, the President may
summon a joint sitting to resolve the deadlock.
3. It may take no action on the Bill, i.e. keep it lying on its table. In
such a case if more than six months elapse from the date of
reception of the Bill, the president may summon a joint sitting.
PRESIDENTS ASSENT

When a Bill is passed by both houses of Parliament, the Bill is

presented to the President for his assent. If the President withholds
his assent, there is an end to the Bill. If he gives his assent, the Bill
becomes an Act from the date of his assent. Instead of either giving or
refusing assent, the President may return the Bill for reconsideration
of the Houses with a message requesting them to reconsider it. If,
however the Houses pass the Bill again with or without amendments
and the Bill is presented to the president for his assent after such
reconsideration, the President shall have no power to withhold his
assent from the Bill.

MONEY BILLS

A bill is deemed to be a 'Money Bill' if it contains only provisions

dealing with all or any of the following matters.

1. the imposition, abolition, remission, alteration, regulation of any

tax
2. the regulation of the borrowing of money by the Government
3. the custody of the Consolidated Fund or the Contingency Fund
of India, the payment of moneys into or the withdrawal of
moneys from any such fund
4. the appropriation of moneys out of the Consolidated fund of India
5. the declaring of any expenditure to be expenditure charged on
the consolidated fund of India or the increasing of the amount of
any such expenditure
6. the receipt of money on account of the Consolidated Fund of
India or the custody or issue of such money or the audit of the
accounts of the Union or of a State or
7. any matter incidental to any of the matters specified above
VI. REMOVING DEADLOCK BETWEEN THE HOUSES

Any Bill other than a Money Bill, can become a Law only if it is agreed
to by both the Houses.

1. As regards money Bills the House of the People has the final
power of passing it, the other house having the power only to
make recommendation for the acceptance of the Hose of
People. In case of disagreement over a money bill, thus the
lower House has plenary power to override the wishes of the
upper Houses i.e. the Council of States.
 2. As regards all other Bills the machinery provided by the
Constitution for resolving a disagreement between the two
houses of Parliament is a joint sitting of the two Houses
The President may notify to the Houses his intention to summon them
for a joint sitting in case of disagreement arising between the two
Houses in any of the following ways.

If after a Bill is passed by one of the Houses and transmitted to the

other houses

1. the Bill is rejected by the other House; or

2. the Houses have finally disagreed as to the amendments to be
made in the Bill; or
3. more than six months have elapsed from the date of reception of
the Bill by the other House without the Bill being passed by it.
PROCEDURE FOR A JOINT SITTING

The Speaker shall preside over the joint sitting

There are restrictions an the amendments to the Bill which may be

proposed at the joint sitting

1. If, after the passage in one House, the Bill has been rejected or
has not been returned by the other House, only such
amendments may be proposes at the joint sitting as are made
necessary by the delay in the passage of the Bill.
2. If the deadlock has been caused because the other House has
proposed amendments to which the originating House cannot
agree then- amendments necessary owing to the delay in the
passage of the Bill as well as - other amendments as are
 relevant to the matters with respect to which the House have
disagreed, may be proposed at the joint sitting.
If at the joint sitting of the two Houses the Bill, with such amendments,
if any, as are agreed in the joint sitting, is passed by a majority of the
total number of members of both houses present and voting, it shall
be deemed for the purposes of this constitution to have been passes
by both the Houses.

The procedure for joint sitting, as prescribed by Art. 108, is confined to

Bills for ordinary legislation and does not extend to a Bill for
amendment of the Constitution, which must be passed by each
Houses separately, by a special majority laid down.
Procedure for impeachment of the
President: Article 61
So, you heard me talking about the impeachment process in the above
paragraph. So, let’s not be secretive about it and discuss how you can be
removed from the post of President through impeachment? 

The President of India can be impeached under Article 61, for the violation of
the Constitution, on the basis of charges preferred by either House of
Parliament. 

A resolution with the proposal to prefer such charges must be signed by at least
one-fourth of the total members of the house. The resolution also needs to be
passed by at least two-thirds majority of the house.

When the resolution is passed by one of the Houses, the other House must
investigate the charges. The President has been granted the right to be present
or to be represented in such investigations.

When the House investigating the charges passes the resolution by a two-thirds
majority and declares the charges as sustaining, it results in removing the
President from his office from the date of passing of the resolution.
Amendability of The Indian Constitution
According to Vepa P. Sarathi, there will never be a conflict between Legislature and
Judiciary and these two powerful organs will be better capable of guiding the third branch
i.e. Executive, if the following view for the purpose of amendment is accepted. Article 368
can be interpreted in the following manner:
A) The power of the Parliament to amend Constitution is absolute and there are no limits on
that power.
B) Parliament should not, however, take away the power of the courts to strike down
ordinary legislation as tested against the amended Constitution.
One can relate to what Shakespeare said in Measure for Measure:
"O, it is excellent
To have a giants strength; but it tyrannous
To use it like a giant."

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 and can be understood in the light of the following cases:
Shankari Prasad V. Union of India (AIR 1951 SC 458)
The validity of the First Amendment Act to the Constitution was challenged on the ground
that it purported to abridge the fundamental Rights under Part 3 of the Constitution of India.
Supreme Court held that the power to amend the Constitution, including Fundamental
Rights is contained in Article 368. An amendment is not a law within the meaning of Article
13(2). Article 13(2) states that – "The State shall not make any law which takes away or
abridges the rights conferred by this part and any law made in contravention to this clause
shall, to the extent of the contravention, be void". An amendment is valid even if it abridges
any fundamental Right.

Sajjan Singh V. State of Rajasthan (AIR 1965 SC 845)

The validity of the 17th Amendment Act, 1964 was challenged on the ground that one of the
acts inserted by the amendment in the 9th Schedule affected the petitioner on the basis that
the amendment fell within the purview of Article 368 and the requirements in the proviso to
Article 368 had not been complied with. Supreme Court approved the judgment in Shankari
Prasad case and held that on Article 13 (2) the case was rightly decided. Amendment
includes amendment to all provisions of the Constitution.

Golaknath V. State of Punjab (AIR 1967 SC 1643)

The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan
Singh cases and held that Parliament had no power to amend part 3 of the Constitution so
as to abridge or take away any of the Fundamental Rights. It also added that Article 368
merely lays down the procedure for the purpose of amendment. Further, The Court said that
an amendment is a law under Article 13(2) of the Constitution of India and if it violates any
fundamental right, it may be declared void.
24th Amendment Act, 1971:
Golaknaths 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."
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.
Kesavananda Bharti V. State Of Kerela (AIR 1973 SC 1461)

One of the various questions raised in this case was the extent of the power of the
Parliament to amend under Article 368. A 13 Judge Constitutional bench was formulated
under Chief Justice Sikri in order to evaluate the intricacies of Golaknaths case. The
Supreme Court overruled its decision in Golaknaths case and held that even before the
24th Amendment, Article 368 contained power as well as procedure for amendment. The
majority held that there are inherent limitations on the amending power of the Parliament
and Article 368 does not confer power so as to destroy the Basic Structure of the
Constitution.
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.
Chief Justice Sikri indicated that Basic structure is:
1. The supremacy of Constitution
2. The republican and democratic forms of government
3. The secular character of Constitution
4. Maintenance of separation of power
5. The federal character of the Constitution

Justices Shelat and Grover added another three:

1. The mandate to build a welfare state contained in the Directive Principles of State Policy
2. Maintenance of the unity and integrity of India
3. The sovereignty of the country'

Justices Hegde and Mukherjea listed the following:

1. The Sovereignty of India
2. The unity of the country
3. The democratic character of the polity
4. Essential features of individual freedoms
5. The mandate to build a welfare state

Justice Jaganmohan Reddy referred the Preamble only:

1. A sovereign democratic republic
2. The provision of social, economic and political justice
3. Liberty of thought, expression, belief, faith and worship
4. Equality of status and opportunity

42nd Amendment Act, 1976 and Article 368:

42nd Amendment Act, 1976 was passed by the Parliament soon after. Amendment added
clause 4 and clause 5 to Article 368. Article 368(4) provided that no Constitutional
Amendment shall be called in any court on any ground. Article 368(5) provided that there
shall be no limitation whatsoever on the constituent power of the Parliament.

Minerva Mills V. Union of India (AIR 1980 SC 1789)

Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd
amendment. Justification for the deletion of the said clauses was based on the destruction
of Basic Structure. The Court was satisfied that 368 (4) and (5) clearly destroyed the Basic
Structure as it gave the Parliament absolute power to amend Constitution. Limitation on the
amending power of the Parliament is a part of the Basic Structure explained
in Kesavanandas case.

S. P. Sampath Kumar V. Union Of India (AIR 1987 SC 386)

The Constitutional validity of Article 323A and the provisions of the Administrative Tribunals
Act was challenged on the ground that it excluded the jurisdiction of High Court under
Article 226 and 227. Supreme Court held that Article 323A and Administrative Tribunals Act
was valid as it has not excluded Judicial Review under Article 32 and 136. It was not proved
beyond reasonable doubt that Article 323A and Administrative Tribunals Act destroyed the
basic structure and the Court upheld their validity.
L. Chandra Kumar V. Union Of India (AIR 1997 SC 1125)
The Supreme Court struck down clause 2(d)of Article 323A and clause 3(d) of Article 323B
as they excluded the jurisdiction of High court under Article 226 and 227 as well as
jurisdiction of Supreme Court under Article 32 as they damage the power of Judicial Review
which is a basic feature of Constitution.

Conclusion
The final word on the issue of Amendability can be related to Basic Structure defined
in Kesavananda Bhartis case. To name a few Minerva Mills case, S. P. Sampath Kumars
case and L. Chandra Kumars case are well based on the principle of Basic Structure and
this situation is unlikely to change in the near future. It is clear 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.