Constitutional Law Project

Assignment on Amendment Of Fundamental Rights
CONSTITUTIONAL LAW
ASSIGNMENT ON
“Amendment Of
Fundamental Rights”
Faculty: Dr. Asad Malik
Page 1
Contents
1. Acknowledgement
2. Introduction
3. Amendment of the Constitution
4. Meaning of Amendment
5. Modes of Amendment of the Constitution
6. Fundamental Rights
7. Importance of Fundamental Rights
8. Power of Parliament to Amend the Constitution
9. Principles Relating to Amendment of the Constitution
10. Power of Parliament to Amend the Fundamental Rights
11. Controversy Surrounding the Amendability of Fundamental Rights
12. History of Amending Power of the Parliament in regard to Fundamental Rights under
Article 368
13. Shankari Prasad v. Union of India
14. First Stage:
a) Sajjan Singh v. State of Rajasthan
15. Second Stage:
a) Golak Nath v. State of Punjab
b) Doctrine of Prospective Overruling
c) 24th Amendment Act, 1971
16. Third Stage:
a) Kesavananda Bhararti v. State of Kerela
b) Indira Nehru Gandhi v. Raj Narain
c) 42nd Amendment Act, 1976
d) 42nd Amendment Act with reference to Article 368
17. Fourth Stage:
a) Minerva Mills Limited v. Union of India
b) Waman Rao v. Union of India
c) S.P. Sampath Kumar v. Union of India
d) Raghunath Rao v. Union of India
e) L. Chandra Kumar v. Union of India
f) M. Nagraj v. Union of India
g) I.R. Coelho v. State of Tamil Nadu
18. Theory of Basic Structure
19. Limitations on the Constituent Power of Amendment
20. Conclusion
21. Bibliography
Page 2
ACKNOWLEDGEMENT
I would like to express my heartfelt gratitude and thanks to
the various authors whose books I have referred to while
doing my project and also the various sources of information
from where I have collected the data for my assignment. I am
duly indebted to them. I am also indebted to the All India
Reports of the Supreme Court and the judgments of various
other Courts.
Last but not the least; I would also like to thank my teacher,
Dr. Asad Malik, for providing us the opportunity to do such
projects and also for helping us with his valuable suggestions.
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AMENDMENT OF FUNDAMENTAL RIGHTS
 INTRODUCTION:-
The Constitution of India was adopted on 26 th November, 1949 and inaugurated on 26 th
January, 1950. It was framed by a Constituent Assembly which consisted of members
who were elected by the Legislatures of the Provinces in 1946.
The framers of the Constitution drew profusely on the Constitutions of the United States
of America, Australia, Canada and the United Kingdom. However, the Indian Constitution
though federal in form is not similar to the Constitutions of the United States of America
or Australia. It is similar to the Constitution of Canada in some respects. The Indian
Constitution is described as “Quasi-federal” by Professor Wheare, as “a new kind of
federalism to meet India’s peculiar needs” Granville Austin and as “federal in times of
peace and unitary in times of war” by Dr. Ambedkar. This divergence of views among the
constitutional scholars is due to the fact that the framers did not follow any set pattern,
but created an instrument of Government which according to them would enable the
people of India to enjoy regional autonomy in a manner consistent with the paramount
national interest. They also provided for Fundamental Rights to ensure that the liberty of
the citizens of India would be a reality and not merely a promise. The inclusion of
directive principles of State Policy in the Constitution assures to the citizens a better life
wherein social and economic justice will be available. The goal which the framers of the
Indian Constitution kept before the nation is fully explained in the Preamble to the
Constitution. The Preamble represents the aspirations of the people of India and the
other provisions of the Constitution are expected to enable the people of India to march
towards the cherished goal enshrined in the Preamble.
The objectives in the Preamble are a part of the ‘basic structure’ of the Constitution.
Hence, the Preamble cannot be amended so as to destroy the objectives. 1
1
Kesavananda Bharati v. State of Kerela, AIR 1973 SC 1461
Page 4
 Amendment of the Constitution:-

Our first Prime Minister, Pandit Jawaharlal Nehru said, “It may be that the
Constitution that this House may frame may not satisfy free India. A free India will do
what it chooses.”2 He also said that, “While we want this Constitution to be as solid
and permanent as we can make it, there is no permanence in the Constitution. There
should be a certain flexibility. If you make anything rigid and permanent you stop the
nation’s growth, of a living, vital, organic people. In any event, we could not make
this Constitution so rigid that it cannot be adopted to changing conditions. When the
world is in a period of transition what we may do today may not be wholly applicable
tomorrow.
But the framers of our Constitution were also aware of the fact that if the
Constitution was too flexible, it would be a playing of the whims and caprices of the
ruling party. They were, therefore, anxious to avoid flexibility of the extreme type.
Hence, they adopted a middle course. It is neither too rigid to admit necessary
amendments, nor flexible for undesirable changes.
The machinery of amendment should be like a safety valve, so devised as neither to

operate the machine with too great facility nor to require, in order to set in motion,
an accumulation of force sufficient to explode it. The Constitution-makers have,
therefore, kept the balance between the danger of having non-amendable
Constitution and a Constitution which is too easily amendable.3
Dr. Ambedkar said, “One can, therefore, safely say that the Indian Federation will not
suffer from the faults of rigidity of legalism. Its distinguishing feature is that it is a
flexible federation.”4
George Bernard Shaw in his book “The Intelligent Woman's Guide to Socialism and
Capitalism” said, “The institutions under which we live are being changed continually
by the Parliament, because we are never satisfied with them. Sometimes they are
scrapped for new ones; sometimes they are altered; sometimes they are done away
with as nuisances. The new ones have to be stretched in the law courts to make
them fit, or to prevent them fitting well if the judges happen to dislike them.” 5
2
Constituent Assembly Debates
3
Keshavananda Bharati v. State of Kerela, AIR 1973 SC 1461
4
Dr. Ambedkar in Constituent Assembly Debates, Volume IX, Pg. 1569.
5
The Intelligent Women’s Guide to Socialism and Capitalism by George Bernard Shaw
Page 5
 Meaning of Amendment:-
The term “Amendment” must be construed in its natural meaning as “altered, by

addition, substitution and omission”.
Oxford’s Dictionary of Law defines Amendment as, “changes made to legislation, for
the purpose of adding to, correcting or modifying the operation of the legislation.” 6
The new Britannica Encyclopedia explains Amendment as “Amendment, in
Government and Law, an addition to or change of a constitution, statute or
legislative bill or resolution. An amendment must actually be accompanied by some
specified parliamentary or constitutional process.” 7
Black’s Law Dictionary defines Amendment as, “A formal revision or addition
proposed or made to statute, Constitution, pleading, order, or other instrument”. In
Parliamentary law, it means “a motion that changes another motion’s wording by
striking out text, inserting or adding text, or substituting text.” 8
The word ‘Amendment’ should be interpreted in the context of the legal and
constitutional history of our Nation and Constitution.
 Modes of Amendment of the Constitution:-
There are two modes/types of Amendment of the Constitution. They are:

1) Formal
2) Informal
 Formal Mode of Amendment ––

The Constitution of India provides for its amendment by way of Amendment
Acts in a formal manner. For the purpose of amendment, the various Articles
of the Constitution are divided into three categories. The first category is out
of the purview of Article 368 whereas the other two are a part and parcel of
the said Article. The various categories of amendment to the Constitution can
be summarized as follows:-
6
Oxford Dictionary of Law
7
Britannica Encyclopedia
8
Black’s Law Dictionary
Page 6
a) Amendment by Simple Majority:

As the name suggests, an article can be amended in the same way by the
Parliament as an ordinary law is passed which requires simple majority.
The amendment contemplated under Articles 5-11 (Citizenship), 169
(Abolition or creation of Legislative Councils in States) and 239-A
(Creation of local Legislatures or Council of Ministers or both for certain
Union Territories) of the Indian Constitution can be made by simple
majority. These Articles are specifically excluded from the purview of the
procedure prescribed under Article 368.
b) Amendment by Special Majority:

Articles which can be amended by special majority are laid down in Article
368. All amendments, except those referred to above come within this
category and must be affected by a majority of total membership of each
House of Parliament as well as two-third (2/3 rd) of the members present
and voting.
c) Amendment by Special Majority and Ratification by States:

Articles which require, in addition to the special majority mentioned
above, ratification by not less than ½ of the State Legislatures. The States
are given an important voice in the amendment of these matters. These
are fundamental matters where States have important power under the
Constitution and any unilateral amendment by Parliament may vitally
affect the fundamental basis of the system built up by the Constitution.
This class of Articles consist of amendments which seek to make any
change in the provisions mentioned in Article 368. The following
provisions require such ratification by the States –
(1) Election of the President (Articles 54 & 55).
(2) Extent of the Executive power of the Union and States (Articles 73 &
162).
(3) Articles dealing with Judiciary, Supreme Court, High Court in the
States and Union Territories (Articles 124 to 147, 214 to 231 and 241).
(4) Distribution of Legislative powers between the Centre and the State
(Articles 245 to 255).
(5) Any of the Lists of the VIIth Schedule.
(6) Representation of States in Parliament. (IVth Schedule).
(7) Article 368 itself.
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d) Amendment under Article 368 of the Indian Constitution.
 Informal Mode of Amendment ––
The Informal mode of Amendment involves the amendment of the

Constitution through through Judicial Interpretation, Conventions and
Constitutional usages. When an amendment or a law made by the
Parliament, if held unconstitutional by the Supreme Court, can be struck
down or repealed by the Supreme Court on the grounds of
unconstitutionality.
 FUNDAMENTAL RIGHTS:-
Part III of the Indian Constitution contains a long list of Fundamental Rights. This
Chapter of the Indian Constitution has very well been described as the Magna Carta
of India.9
There were no fundamental rights under any of the Government of India Acts
because they were founded on the English doctrine of sovereignty of Parliament
which was repugnant to any limitations upon the authority of Parliament, by way of
safeguarding individual rights. But nationalist opinion, since the time of the Nehru
Report, was definitely in favour of a Bill of Rights, because the experience gained
from the British regime was that a subservient Legislature might occasionally help
the Executive in committing inroads upon individual liberty.
So, the Constitution of India embodied a number of Fundamental Rights in Part III of
the Constitution, which are available not only against the Executive but are also
limitations upon the powers of the Legislature. But though the model has been
taken from the United States, the Indian Constitution does not go so far, and rather
effects a compromise between the doctrines of Parliamentary sovereignty and
judicial supremacy. On the one hand, the Parliament of India cannot be said to be
sovereign in the English sense of legal omnipotence, –– for, the very fact that the
Parliament is created and limited by a written Constitution, enables our Parliament
to legislate only subject to the limitations and prohibitions imposed by the
9
Fundamental Rights and Constitutional Remedies., Vol. 1 (1964), Pg-1 by V.G. Ram Chandran
Page 8
Constitution. e.g., subject to the Fundamental Rights, the distribution of

legislative powers, etc.
On the other hand, the major portion of the Constitution is liable to be amended by
the Union Parliament by a special majority, if, any case, the Judiciary proves too
obtrusive.
The inclusion of a Chapter of Fundamental Rights i8n the Constitution of India is in
accordance with the trend of modern democratic thought, the idea being to
preserve that which is an indispensable condition of a free society. The aim of having
a Declaration of Fundamental Rights is that certain elementary rights, such as, right
to life, liberty, freedom of speech, freedom of faith and so on, should be regarded as
inviolable under all conditions and that the shifting majority in Legislature of the
country should not have a free hand in interfering with these fundamental rights. 10
Articles 12 to 35 of the Constitution pertain to fundamental rights. These rights are

reminiscent of some of the provisions of the Bill of Rights in the United States
Constitution but the former cover a much wider ground than the latter.
The fundamental rights have been grouped under seven heads. Right to Equality
comprises Articles 14 to 18, of which Article 14 is the most important. Right to
Freedom comprises Articles 19 to 22 which guarantee several freedoms. Right
against Exploitation consists of Articles 23 and 24. Right to Freedom of Religion is
guaranteed by Articles 25 to 28. Cultural and Educational Rights are guaranteed by
Articles 29 and 30. Right to Property is now very much diluted and is secured to
some extent by Articles 30-A, 31-A, 31-B and 31-C. Right to Constitutional Remedies
is secured by Articles 32 to 35. These Articles provide the remedies to enforce the
fundamental rights and of these, the most important is Article 32.
As the fundamental rights constitute by and large a limitation on the government,
the most important problem which the courts have been faced with while
interpreting them has been to achieve a proper balance between the rights of the
individual and those of the state or society as a whole, between individual liberty
and social control. This is a very difficult task indeed in these days of development of
the country into a social welfare state.
The fundamental rights are not all distinct and mutually exclusive rights. Each
freedom has different dimensions and a law may have to meet the challenge under
various fundamental rights. Thus, a law depriving a person of hi personal liberty may
have to stand the test of Articles 14, 19 and 21 to be valid. Formerly, however, the
courts applied the Doctrine of Exclusivity of fundamental rights and treated each
10
A.K Gopalan v. State of Madras, AIR 1950 SC 27.
Page 9
right as a distinct and separate entity, but this view has now undergone a
change providing to the courts a better leverage to test the validity of laws affecting
fundamental rights.
 Importance of Fundamental Rights:-
Fundamental Rights were deemed essential to protect the rights and liberties of the
people against the encroachment of the power delegated by them to their
Government. They were included in the constitution because they were considered
essential for the development of the personality of every individual and to preserve
human dignity. They are limitations upon all the powers of the Government,
legislative as well as the executive and they are essential for the preservation of
public and private rights, notwithstanding the representative character of political
instruments.11
The writers of the constitution regarded democracy of no avail if civil liberties, like
freedom of speech and religion were not recognized and protected by the State.
According to them, "democracy" is, in essence, a government by opinion and
therefore, the means of formulating public opinion should be secured to the people
of a democratic nation. For this purpose, the constitution guaranteed to all the
citizens of India the freedom of speech and expression and various other freedoms
in the form of the fundamental rights.
All people, irrespective of race, religion, caste or sex, have been given the right to
move the Supreme Court and the High Courts for the enforcement of their
fundamental rights. It is not necessary that the aggrieved party has to be the one to
do so. Poverty stricken people may not have the means to do so and therefore, in
the public interest, anyone can commence litigation in the court on their behalf. This
is known as "Public Interest Litigation". In some cases, High Court judges have acted
on their own on the basis of newspaper reports.
These fundamental rights help not only in protection but also the prevention of gross
violations of human rights. They emphasise on the fundamental unity of India by
guaranteeing to all citizens the access and use of the same facilities, irrespective of
background. Some fundamental rights apply for persons of any nationality whereas
others are available only to the citizens of India. The right to life and personal liberty
is available to all people and so is the right to freedom of religion. On the other
11
Hartado v. People of California, 28 Led 232, per Mathew, J.
Page 10
hand, freedoms of speech and expression and freedom to reside and settle in
any part of the country are reserved to citizens alone, including non-resident Indian
citizens. The right to equality in matters of public employment cannot be conferred
to overseas citizens of India.
Fundamental rights primarily protect individuals from any arbitrary state actions, but
some rights are enforceable against individuals. For instance, the Constitution
abolishes untouchability and also prohibits beggary. These provisions act as a check
both on state action as well as the action of private individuals. However, these
rights are not absolute or uncontrolled and are subject to reasonable restrictions as
necessary for the protection of general welfare. They can also be selectively
curtailed.
Speaking about the importance of Fundamental Rights in the historic judgment of
Maneka Gandhi v. Union of India, AIR 1978 SC 597, Justice Bhagwati observed,
“These fundamental rights represent the basic values cherished by the people of this
country (India) since the Vedic times and they are calculated to protect the dignity of
the individual and create conditions in which every human being can develop his
personality to the fullest extent. They weave a “pattern of guarantee’ on the basic
structure of human rights, and impose negative obligations on the State not to
encroach on individual liberty in its various dimensions.”
The object behind the inclusion of the Chapter of Fundamental Rights in Indian
Constitution is to establish “a Government of law and not of man’ a governmental
system where the tyranny of majority does not oppress the minority. In short, the
object is to establish Rule of Law and it would not be wrong to say that the Indian
Constitution in this respect goes much ahead than any other Constitutions of the
world. The object is not merely to provide security and equality of citizenship of the
people living in this land and thereby helping the process of nation building, but also
and not less important to provide certain standards of conduct, citizenship, justice
and fair play. They were intended to make all citizens and persons appreciate that
the paramount law of the land has swept away privileges and has laid down the
paramount perfect equality between one section of the community and another in
the matter of all those rights which are essential for the material and more
perfection of man.12
In M. Nagraj v. Union of India, AIR 2007 SC 71, the Supreme Court ‘speaking about
the importance of the fundamental rights’ held that fundamental rights are not gift
from the State to citizens. Part 3 does not confer fundamental rights but confirm
12
Moti Lal v. State of Uttar Pradesh, AIR 1951 All. 257
Page 11
their existence and give them protection. Individuals possess basic human rights
independently of any Constitution by reason of basic fact that they are the human
race. There rights are important as they possess intrinsic values. Its purpose is to
withdraw certain subjects from the area of political controversy to place them
beyond the reach of majorities and officials and to establish them as legal principles
to be applied by the Courts.
o The Six Fundamental Rights are as follows:-

1. Right to Equality (Articles 14 to 18)
2. Right to Freedom (Articles 19 to 22)
3. Right against Exploitation (Articles 23 and 24)
4. Right to Freedom of Religion (Articles 25 to 28)
5. Cultural and Educational Rights (Articles 29 and 30)
6. Right to Constitutional Remedies (Articles 32 to 35)
 POWER OF PARLIAMENT TO AMEND THE CONSTITUTION:-
The times & life of a Nation is not static. The Constitution acts like a living organism
and a Constitution drafted in one era is often inadequate for another. There is a
constant change in political, social and economic conditions of a nation. Hence it is
the right of every generation to mould its future.
A federal Constitution is a rigid Constitution. Hence the procedure for its amendment
is usually a complicated one. The Indian Constitution however has provided for a
simple procedure for its amendment. Article 368 of the Indian Constitution lays
down the provisions of the Constitution regarding amendment.
Article 368 of Part XX of the Indian Constitution deals with the Amendment of the
Constitution and the procedure therefor. It states that:
368. [Power of Parliament to amend the Constitution and procedure therefor.]13—
[(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its
constituent power amend by way of addition, variation or repeal any provision of
this Constitution in accordance with the procedure laid down in this article.] 14
13
Subs. by the Constitution (24th Amendment) Act, 1971, Section 3(a), for “Procedure for amendment of the
Constitution” (w.e.f. 5-11-1971).
14
Ins. by the Constitution (24th Amendment) Act, 1971, Section 3(b) (w.e.f. 5-11-1971).
Page 12
(2) An amendment of this Constitution may be initiated only by the

introduction of a Bill for the purpose in either House of Parliament, and when the Bill
is passed in each House by a majority of the total membership of that House and by
a majority of not less than two-thirds of the members of that House present and
voting, [it shall be presented to the President who shall give his assent to the Bill and
thereupon]15 the Constitution shall stand amended in accordance with the terms of
the Bill:
Provided that if such amendment seeks to make any change in—
(a) article 54, article 55, article 73, article 162 or article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than
one-half of the States by resolutions to that effect passed by those Legislatures
before the Bill making provision for such amendment is presented to the President
for assent.
[(3) Nothing in article 13 shall apply to any amendment made under this article.] 16
17
[(4) No amendment of this Constitution (including the provisions of Part III) made
or purporting to have been made under this article whether before or after the
commencement of section 55 of the Constitution (Forty-second Amendment) Act,
1976 shall be called in question in any court on any ground.]
[(5) For the removal of doubts, it is hereby declared that there shall be no limitation
whatever on the constituent power of Parliament to amend by way of addition,
variation or repeal the provisions of this Constitution under this article.]
A Bill to amend the Constitution may be introduced in either house of the
Parliament. It must be passed by each house by a majority of the total membership
of that house and by a majority of not less than 2/3rd of the members present and
voting. Thereafter, the bill is presented to the President for his assent who shall give
his assent and thereupon the Constitution shall stand amended. In case, ratification
by state is required it has to be done before presenting it to the President for his/her
assent.
15
Subs. by the Constitution (24th Amendment) Act, 1971, Section 3(c), for certain words (w.e.f. 5-11-1971).
16
Ins. by the Constituion (24th Amendment) Act, 1971, Section 3(d) (w.e.f. 5-11-1971).
17
Cls. (4) and (5) were ins. “in Article 368 by Section 55 of the Constitution (Forty-second Amendment) Act,
1976. This section has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union
of India and Others, (1980 ) 3 S.C.C. 625.
Page 13
 Article 368, was first amended by the Constitution (Twenty-fourth

Amendment) Act, 1971, w.e.f. 5-8-1971, in order to counteract the effects of
the majority decision of the Supreme Court in Golak Nath’ case.18
 But even such elaborate amendments proved ineffective to deter the
Supreme Court from invalidating a Constitution Amendment Act on a
substantive ground, as happened in Keshavananda19 and Rajnarain’s20 cases.
 Hence, by the 42nd Amendment Act, Clause (4) and Clause (5) were inserted,
to make it clear that on no ground (not even on the ground of procedural
non-compliance with the requirements of Article 368, shall any be competent
to invalidate any Constitution Amendment Act.21
 Amendment of the Constitution: The power to amend cannot be equated
with the power to frame the Constitution, which by no limitations or
constraints. It is primary power, a real plenary power.22
 Effects of Amendments: The net effects of these successive amendments on
the 1949 provision may be explained below:––
Article 368 as it stood in 1949:

1) It was not obligatory for the President to give his assent to a Bill for
amendment of the Constitution.
2) What was meant by ‘amendment’ was not explained.
3) Relying on the word “Bill”, it was held in Golak Nath’s case that a
Constitution Amendment Act, though passed in exercise of the power
conferred by Article 368, was a ‘law’ subject to Article 13(2).
4) Though the amending power conferred by Article 368 was not subject to
any express limitations, it was held in Keshavananada and Rajnarain’s
cases that it was subject to the procedural conditions imposed by Article
368, and to the implied limitation that the power to amend could not
alter the ‘basic features’ of the Constitution or to make a new
Constitution altogether.
Article 368 as it stands after 1976:

18
Golak Nath v. State of Punjab, AIR 1967 SC 1643
19
Keshavananda Bharati v. State of Kerela, AIR 1973 SC 1461
20
Indira Gandhi v. Rajnarain, AIR 1975 SC 2299
21
But even this addition has been foiled by the Supreme Court in Miverva Milla v. Union of India, AIR 1980 SC
1789, holding Clause (4) and Clause (5) as void, on the ground that this amendment sought to totally exclude
judicial review, which was “basic feature” of the Constitution.
22
I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861: (2007) 2 SCC 1.
Page 14
1) It has been made obligatory for the President to give his assent to a
Bill passed under Article 368 [Clause (2), as amended by the 24 th
Amendment Act, 1971], though his power to veto other Bills remains
intact, subject, of course, to ministerial advice under Article 74(1), as
amended by the 42nd Amendment Act.
2) By inserting Clause (1), the 24 th Amendment Act, 1971, has made it clear
that amendment would include ‘addition, variation or repeal of any
provision of the Constitution’.
3) The 24th Amendment Act, 1971 repelled the theory that a Constitution
Amendment Act passed under the exercise of power conferred by Article
368 was a ‘law’ subject to Article 13(2). The 24 th Amendment Act repelled
this theory by inserting Clause (4) in Article 13 and Clause (3) in Article
368.
4) The 42nd Amendment Act inserted Clause (5) to say that there are no
limitations whatever to the power conferred by Article 368, and Clause
(4) to say that a Constitution Amendment Act shall be immune from
judicial review altogether, whether on substantive or procedural grounds.
But this amendment has been annulled by the Supreme Court in Minerva
Mills case. By inserting Clause (4) and (5) to Article 368, the Parliament
tried to repel the theory that an amendment could not alter the ‘basic
features’ of the Constitution.
 Principles relating to Amendment of the Constitution:-
(a) Subject to the special procedure laid down in Article 368, our Constitution vests
constituent power upon the ordinary Legislature of the Union, i.e., the
Parliament and there is no separate body for amending the Constitution, as
exists in some other Constitutions.23
(b) Subject to the provisions of Article 368, Constitution Amendment Bills are to be
passed in the same way as ordinary Bills.
(c) Parliament may, by a Constitution Amendment Act, amend Article 368 itself.
(d) While previously it was held that the courts are competent to examine the
validity of a Constitution Amendment Bill to see whether the provisions of Article
368 have been complied with or violated, Clause (4) and Clause (5), as inserted
by the 42nd Amendment Act, 1976, intended to preclude judicial review even on
23
Shankari Prasad v. Union of India, (1952) SCR 89; Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 ––
restored by 24th Amendment Act; and Clause (5) inserted by the 42nd Amendment Act, 1976.
Page 15
that ground; but these Clauses have been declared ‘unconstitutional’ by the
Supreme Court.
 POWER OF PARLIAMENT TO AMEND THE FUNDAMENTAL RIGHTS:-
Part III of the Indian Constitution contains the Chapter on Fundamental Rights.
Article 12 states that:-

12. Definition.–– In this Part, unless the context otherwise requires, “the
State’’ includes the Government and Parliament of India and the
Government and the Legislature of each of the States and all local or
other authorities within the territory of India or under the control of the
Government of India.
Article 13 states that:-
13. Laws inconsistent with or in derogation of the fundamental rights.––

(1) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part, shall, to the extent of
such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of
this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the
force of law;
(b) “laws in force” includes laws passed or made by a Legislature
or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas.
24
[(4) Nothing in this article shall apply to any amendment of this Constitution
made under article 368.]
24
Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, Section 2 (w.e.f. 5-11-1971)
Page 16
 State: Article 12 clarifies that the term “State” occurring in Article 13 (2), or any
other provision concerning fundamental rights, has been given an expansive
meaning. According to Article 12, ‘the state’ includes the Government and
Parliament of India, the Government and the Legislature of a State, and all local or
other authorities within the territory of Indi, or under the control of the Central
Government. The actions of any of these organs can be challenged before the courts
as violating fundamental rights. Article 12 has given an extended significance to the
term ‘state’.
 Justiciability of Fundamental Rights: Article 13 gives teeth to the fundamental
rights and makes them justiciable. The effect of Article 13 is that all pre-Constitution
laws shall be void to the extent of their inconsistence with the fundamental rights.
According to Article 13(2), the state ‘shall not make any law’ which takes away or
abridges the fundamental rights; and a law contravening a fundamental rights is, to
the extent of the contravention, void. Most of the fundamental rights are claimed
against the state and its instrumentalities and not against private bodies. 25 The two
important concepts used in these provisions is ‘state’ and ‘law’.
 Law: The term ‘law’ in Article 12 has been given a wide connotation so as to include
any ordinance, order, bye-law, rule, regulation, notification, custom or usage having
the force of law. Thus, not only a piece of legislation, but any of the things
mentioned here can be challenged as infringing a fundamental right. Accordingly, a
resolution passed by a State Government under Fundamental Rule 44 of the State, 26
a government notification under the Commissions of Inquiry Act setting up a
commission of inquiry,27 a notification28 or an order29 under a statute, an
administrative order,30 a custom or usage,31 bye-laws of a municipal or statutory
body,32 regulations made by a statutory corporation like the Life Insurance
Corporation,33 have been held to be ‘law’ under Article 13. The bye-laws of a co-
operative society framed under a co-operative societies act do not fall within the
purview of Article 13.34 Though a law as such may not be invalid, yet an order made
under it can still be challenged as being inconsistent with a fundamental right
25
P.D. Shamdasani v. Central Bank of India, AIR 1952 SC 59.
26
Madhya Pradesh v. Mandawar, AIR 1954 SC 493.
27
Dalmia v. Justice Tendolkar, AIR 1958 SC 538
28
Madhubhai Amathalal Gandhi v. Union of India, AIR 1961 SC 21.
29
Pannalal Binjraj v. Union of India, AIR 1957 SC 397.
30
Balaji v. Mysore, AIR 1963 SC 649
31
Sant Ram v. Labh Singh, AIR 1965 SC 314.
32
Tahir v. District Board, AIR 1954 SC 630.
33
Bhagatram, supra, 462; Hirendra Nath Bakshi v. Life Insurance Corporation, AIR 1976 Cal.
34
Co-op. Credit Bank v. Industrial Tribunal, AIR 1970 SC 245.
Page 17
because no law can be presumed to authorize anything unconstitutional. 35

Article 13 is a key provision as it makes fundamental rights justiciable. It confers a
power, and imposes an obligation, on the courts to declare a law void if it is
inconsistent with a fundamental right. The Supreme Court has figuratively
characterized this role of the judiciary as that of a ‘sentinel on the qui vive’.
 Doctrine of Severability: According to Article 13, a law is void only “to the extent of
the inconsistency or contravention” with the fundamental right. This means that an
Act may not be void as a whole; only a part of it may be void and if that part is
servable from the rest then the rest of the Act may continue to stand and remain
operative. The Act will then be read as if the invalid portion was there. If, however, it
is not possible to separate the valid from the invalid portion, then the whole of the
statute will have to go.36
o CONTROVERSY SURROUNDING THE AMENDABILITY OF

FUNDAMENTAL RIGHTS:-
The elementary question in controversy has been whether Fundamental Rights
are amendable so as to take away the basic rights guaranteed by the
Constitution. Another controversy deals with the extent, scope and authority of
Parliament to amend Constitution. The answer has been given by the Supreme
Court from time to time, sometimes under immense pressure. The question
whether fundamental rights can be amended under Article 368 came for
consideration of the Supreme Court in Shankari Prasad v. Union of India.37 In
this case the validity of the Constitution was challenged. The Amendment was
challenged on the ground that it purported to take away or abridge the rights
conferred by Part III which fell within the prohibition of Article 13(2) and hence
was void. It was argued that the term “State” in Article 12 included Parliament
and the word “Law” in Article 13(2), therefore, must include constitution
amendment. The Supreme Court, however, rejected the above argument and
held that the power to amend the Constitution including the fundamental rights
is contained in Article 368, and that the word ‘Law’ in Article 13 (2), includes only
an ordinary law made in exercise of the Legislative powers and does not include
35
Narendra Kumar & Others v. Union of India, AIR 1960 SC 430.
36
Kameshwar Pd. v. State of Bihar, AIR 1962 SC 1166; Madhya Pradesh v. Ranojirao Shinde, AIR 1968 SC 1053.
37
AIR 1951 SC 455 at pg. 458.
Page 18
constitutional amendment which is made in exercise of constituent

power. Therefore, a constitutional amendment will be valid even if it abridges or
takes any of the fundamental rights.
 History of Amending Power of the Parliament in regard to Fundamental

Rights under Article 368:-
A review of judgments of the Supreme Court indicates that the Court interpreted the
provisions of the Constitution relating to the amendment of the Constitution
differently at different times. From Shankari Prasad’s case to Sajjan Singh’s case,38
Golak Nath’s case39 to Kesavananda Bharati’s case40, Minerva Mills’ case;41 we can
divide the entire chronology of the history of these cases and their decisions thereof
into various Stages.
The important cases related with Amendment of Fundamental Rights, that I will be
referring to in my assignment, in chronological order are as follows:-
1) Shankari Prasad v. Union of India, AIR 1951 SC 455
2) Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
3) Golak Nath v. State of Punjab, AIR 1971 SC 1643
4) Kesavananda Bharati v. State of Kerela, AIR 1973 SC 1461
5) Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
6) Minerva Mills Limited v. Union of India, AIR 1980 SC 1789
7) Waman Rao v. Union of India, AIR 1981 SC 271
8) S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386
9) Raghunath Rao v. Union of India, AIR 1993 SC 1267
10) L. Chandra Kumar v. Union of India, AIR 1997 SC 1125
11) M. Nagraj v. Union of India, AIR 2007 SC 71
12) I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 8617
 First Stage:-
From Shankari Prasad’s case to Sajjan Singh’s case, the Supreme Court held that
Parliament has unlimited power of amending the Constitution and an amendment of
38
AIR 1965 SC 845.
39
AIR 1971 SC 1643.
40
AIR 1973 SC 1461.
41
AIR 1980 SC 1789.
Page 19
the Constitution was not a “law” within the meaning of Article 13. This
meant that there were no limitations on the power of Parliament to amend the
Constitution and the Supreme Court had no authority to consider the legality or
otherwise of an amendment of the Constitution. Only two judges in the Sajjan Singh
case expressed doubts about this proposition.
 In Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, the validity of the
Constitution (17th Amendment) Act, 1964 was challenged. The Supreme Court
approved the majority judgment given in Shankari Prasad’s case and held that the
words “Amendment of the Constitution” means amendment of all the provisions of
the Constitution. Gajendragadkar, C.J. said that, “If the Constitution makers intended
to exclude the fundamental rights from the scope of the amending power they
would have made a clear provision in that behalf.”
 Doubts expressed in Sajjan Singh’s Case:
For more than a decade, controversy seemed to have been settled; but in Sajjan
Singh v. State of Rajasthan42, certain doubts were expressed by Hidayatullah and
Madholkar, JJ.
Hidayatullah, J said: “But I make it clear that I must not be understood to have
subscribed to the view that the word ‘law’ in Article 13(2) does not control
Constitutional amendments. I reserve my opinion on that case for I apprehend that it
depends on how wide is the word ‘law’ in that Article.”
Madholkar, J. also made the following observations : “In view of these considerations
and those mentioned by my learned brother Hidayatullah I feel reluctant to express
a definite opinion on the question whether the word ‘law’ in Article 13(2) of the
Constitution excludes an Act of Parliament amending the Constitution and also
whether it is competent to parliament to make any amendment at all to Part III of
the Constitution.”
 Second Stage:-
 In Golak Nath v. State of Punjab, AIR 1971 SC 1643, the validity of the Constitution
(17th Amendment) Act, 1964, which inserted certain State Acts in Ninth Schedule was
again challenged. The Supreme Court laid down by a majority (six out of eleven
42
A.I.R. 1965 SC 845.
Page 20
Judges) that there was no distinction between legislative and constituent

power. The Supreme Court prospectively overruled its earlier decision in Shankari
Prasad’s case and Sajjan Singh’s case and held that Parliament had no power from
the date of this decision to amend Part III of the Constitution so as to take away or
abridge fundamental rights. Hence, an amendment of the Constitution that abridged
or curtailed any of the fundamental rights was subject to Article 13(2). The Court laid
down that Parliament had no power to curtail or abridge fundamental rights. The
Court also laid down that Article 368 merely laid down the procedure for an
amendment of the Constitution, the power to amend was to be traced to the
residuary power of legislation. The Court however did not declare the amendment
made to the Constitution up to the date of the judgment (i.e. 27-2-1967) as void, in
order to avoid “the disastrous effect” of the decision. Hence, it introduced the
“Doctrine of prospective overruling”.
 In this case three Writ Petitions (one against State of Punjab and two against State of
Mysore) were filed to challenge the validity of certain land reforms as well as of the
Constitution (17th Amendment) Act, 1964 on the ground of violation of fundamental
rights under Articles 14, 19 and 31.
 The main ground in favour of un-amendability of fundamental rights was based on
the construction of Articles 13(2) and 368 of the Constitution. The Court held that it
is true that the Constitution does not directly prohibit amendment of fundamental
rights but the word ‘law’ in Article 13(2) includes Constitutional law and
Constitutional amendments being law cannot take away or abridge fundamental
rights in the face of express prohibition in Article 13(2). If fundamental rights are
abridged or taken away by amendment, this could be possible only by a Constituent
Assembly, which maybe convoked by Parliament by enacting a law under residuary
powers.
 All the three amendments challenged in the Writ Petitions were upheld by the Court
on the ground that they were made on the basis of earlier decisions of the Supreme
Court and holding them invalid after such a long time would create chaos and would
unsettle the conditions in the country. Since the land reform legislations challenged
were protected by the Constitution (17 th Amendment) Act and the amendment was
held valid, the Court held that the legislation in question could not be challenged and
dismissed the petitions. However, the Court applied the doctrine of prospective
overruling and held that in future Parliament could not abridge fundamental rights
by Constitutional amendments or legislation.
Page 21
 Doctrine of Prospective Overruling (Meaning):-

The basic meaning of prospective overruling is to construe an earlier decision in a
way so as to suit the present day needs, but in such a way that it does not create a
binding effect upon the parties to the original case or other parties bound by the
precedent. The use of this doctrine overrules an earlier laid down precedent with
effect limited to future cases and all the events that occurred before it are bound by
the old precedent itself. In simpler terms it means that the court is laying down a
new law for the future.
 24th Amendment Act, 5th November, 1971:-
 Golak Nath’s case created a lot of difficulties and as a result the Parliament
enacted 24th Amendment Act, 1971 whereby it changed the old heading of
Article 368– “Procedure for Amendment of the Constitution” to a new
heading – “Power of the Parliament to Amend the Constitution and
Procedure Therefor.”
 This Act made it clear that a constitution amendment is not “law” as
mentioned in Article 13. Article 368 was amended with a view to ensuring
that Parliament has power to amend any provisions of the Constitution. This
was done to negative the effects of the Golak Nath’s judgment. The Supreme
Court in the Kesavananda Bharati case upheld the validity of the
amendment.
 To the benefit of the Legislators, the 24th Amendment Act, 1971 restored
and extended the scope of power of Parliament to amend the Constitution by
adding the words “amend by way of addition or variation or repeal any
provision in accordance with the provisions laid down in this Article” Further,
the amendment provided that “Nothing in Article 13 shall apply to any
amendment made under this article” by way of an addition of Clause 3 to
Article 368.
 Third Stage:-
 The validity of the Constitution (24 th Amendment) Act, 1971 was challenged
in Kesavananda Bharati v. State of Kerela, AIR 1973 SC 1461, popularly
known as the Fundamental Rights’ case. In this case, His Holiness Swami
Kesavananda Bharti Sri Padagalwaru was the head of a Math in Kerela. Land
Page 22
reform legislation in Kerela had affected the property of his

religious institution. Subsequently, these changes in the Land Reform Law
were placed in the Ninth Schedule by the 29 th Amendment. The petitioners
had challenged the validity of the Kerela Land Reforms Act, 1963. But during
the pendency of the petition, the Kerela Act was amended in 1971 and was
placed in the Ninth Schedule by the 29th Amendment Act, 1972. The
petitioner was permitted to challenge the validity of the 24th Amendment Act,
25th Amendment Act and also the 29 th Amendment Act. The question
involved was as to what was the extent of the amending power conferred by
Article 368 of the Constitution? On behalf of the Union of India it was claimed
that amending power was unlimited and short of repeal of the Constitution
any change could be effected. On the other hand, the petitioner contended
that the amending power was wide but not unlimited. Under Article 368,
Parliament cannot destroy the “basic feature” of the Constitution. A Special
Bench of 13 Judges (the largest bench by far in our country) was constituted
to hear the case. The decision in this case would completely alter the
constitutional landscape of India for generations to come.
 This decision continues to be one of the longest reported judgement and
covers 594 pages of All India Reporter. The 13 Judges gave elaborate reasons
and analysing them critically is extremely strenuous. Several propositions
have been repeated again and again.
 The Court by majority overruled the Golak Nath’s case which denied
Parliament the power to amend fundamental rights of citizens. The majority
held that Article 368 even before the 24th Amendment contained power as
well as the procedure of amendment. The 24 th Amendment merely made
explicit what was implicit in the unamended Article 368-A. The 24 th
Amendment Act does not enlarge the amending power of the Parliament.
The 24th Amendment is declaratory in nature. It only declares the true legal
position as it was before that amendment, hence it is valid. The Court laid
down that:
(1) Article 368 does not empower Parliament to amend the basic structure of
the Constitution.
(2) The 24th Amendment Act is valid.
(3) The first part of Section 3 of the 25 th Amendment Act is valid. The part of
the Section, namely, “no such law containing the declaration that is for giving
effect to such policy shall be called in question in any court on the ground
that is does not give effect to such policy”, is invalid.
Page 23
(4) The Court also upheld the validity of other provisions which
related to an amendment of the Constitution and which were challenged in
the case. In this case, it was urged that there are implied limitations on the
amending power of Parliament. However, the majority did not uphold this
plea. Only five out of the thirteen judges subscribed to the view of implied
limitations.
 The Court also laid down that the Parliament has power to amend even the
provisions relating to fundamental rights. For, the majority did not hold that
fundamental rights are a basic feature of the Constitution; but the Parliament
has no power to amend the Constitution so as to affect the basic structure of
the Constitution.
 It was also held in this case that the Supreme Court may strike down even an
amendment of the Constitution.
o The Decision in Kesavananda Bharati case was also followed in the famous
case of Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, also
known as the Election case. In this case, the election of Mrs. Indira Gandhi
was set aside by the Allahabad High Court on grounds of corrupt practices.
Instead of gracefully waiting for the outcome of her appeal before the
Supreme Court, the Parliament passed the 39th Amendment Act, 1975 on
10th August 1975, taking the election of President, Vice President, and Prime
Minister outside the pale of Judicial Review. The amendment was tailor made
to nullify the decision of the Allahabad High Court. The constitutional validity
of this amendment came up for consideration in the aforesaid Indira Gandhi’s
case. Article 329-A(4) was held to be constitutionally invalid. Several
observations regarding the law relating to elections are not relevant here. As
regards to basic structure, Chandrachud J. who was part of the majority,
referred to the five aspects that would constitute the basic structure:
o Sovereign democratic republic status
o Equality of status in opportunity of an individual
o Rule of law
o Secularism and freedom of conscience and religion
o Judicial review
The Supreme Court struck down Clause (4) of Article 329-A on various grounds.
Ray, C.J. pointed out: “Clause (4) of Article 329-A……..has passed a declaratory
judgment and not law. Legislative judgment in clause (4) is an exercise of judicial
Page 24
power………the validation of election cannot rest on clause (4).”

Mathew, J. held that “democracy” is basic feature of the Constitution and this
basic feature has been damaged by clause (4). Hence the clause was invalid. “An
election dispute can be resolved only by a tribunal and not by a legislature.”
This judgment had an extensive discussion on the basic structure theory and to
what extent it would apply to the ordinary law making powers of Parliament.
This judgment is also important from the point of view of the meaning of the
expression “constituent power”. The power exercised by a Constituent Assembly
in framing a new Constitution is a plenary power and is not subject to any
limitations. But the constituent power exercised by a body empowered to amend
the Constitution is subject to limitations.
After the judgments of Kesavananda Bharati case and Indira Gandhi Election case
were delivered, Parliament amended the Constitution in 1976 (Forty-second
Amendment) Act and added the clauses (4) and (5) to Article 368.
 42nd Amendment Act, 18th December, 1976:-
 This was the most extensive Amendment Act. It contained 55 Sections and
sought to amend a number of Articles. It proved to be a most controversial
amendment as it was attacked more from the point of view of political
affiliations rather than purely legal objections. There was a national debate
on the proposals contained in this amendment. As the amendment was
undertaken during the period of emergency when the freedom of expression
was subject to many restrictions and a number of members of Parliament
from opposition parties were in prison, it was denounced by many. The
principles on which the amendment was based were the sovereign powers of
Parliament to amend the Constitution, wide powers to the Union
Government with a view to maintaining law and order in the country,
curtailment of the power of the judiciary with the purpose of taking away the
jurisdiction of the Supreme Court as regards deciding the validity by a
constitutional amendment, avoiding the interpretation of constitutional
provisions. This amendment became one of the topics of general election to
Parliament at the end of the emergency period.
Page 25
 42nd Amendment Act with reference to Article 368––
Encouraged by the decision in Kesavananda Bharati’s43 case, Clauses (4) and

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

Clauses (4) and (5) in Article 368, has been held to be void by the Supreme
Court in the Minerva Mills case.44 The Supreme Court held the new clauses to
be void on the ground that this amendment sought to totally exclude judicial
review, which was ‘basic feature’ of the Constitution.
 A question may be asked here, can we say that an amendment made by

Parliament is an amendment made by people? The 42nd amendment was
intended to achieve this object. It was argued that the amending body under
Article 368 has the full constituent power. In other words, the Parliament
acts in the same capacity as the Constituent Assembly when exercising the
power of amendment under Article 368. It is submitted that this proposition
is totally wrong. The reasons are:-
1) Firstly, an amendment made by Parliament cannot be said to be an
amendment made by the people. There is a distinction between the
power of the people to amend a Constitution and the power of the
legislature to amend it. It is true that Parliament represents the will of the
people. But it is not equally true that whatever Parliament does is usually
approved by the people. The Lok Sabha election held in 1977 is a good
example to show that the representatives of the people in Parliament do
43
Kesavananda Bharati v. State of Kerela, AIR 1973 SC 1461.
44
Minerva Mills v. Union of India, AIR 1980 SC 1789.
Page 26
not always reflect the people’s will. Whatever was done during the
emergency was done in the name of the people. But from the election
result it was clear that they had rejected all what had been in their name
by the representatives. Therefore it is not possible to derive support for
an unfettered amending power from the theory that their representatives
of the people always reflect the people’s will. The theory of basic
structure propounded by the Supreme Court in Kesavananda’s case is
correct and will act as a safety valve against arbitrary use of amending
powers. In Australia out of 30 amendments proposed by the absolute
majority of Australian Parliament only four were accepted and 26 were
rejected by the people.
2) Secondly, the assertion of parliamentary supremacy is based on wrong
nations. The supremacy of the parliament is the main characteristic of the
British Constitution, Parliamentary supremacy means that the Parliament
has unlimited law making power. It includes both the constituent powers
and ordinary law making powers. Parliament can change the Constitution
by passing an ordinary law. It means that there is no distinction in
England between constitutional law and ordinary law. Thirdly, no law
passed by the Parliament can be declared unconstitutional by the courts.
In India, Parliament is not supreme but the Constitution is supreme.
Parliament is the creature of the Constitution and derives its powers from
the provisions of the Constitution including the power to amend the
constitution under Article 368. Laws passed by Parliament can be
declared ultra vires the Constitution. There is distinction between
constituent powers of Parliament and its ordinary law making powers.
The amending power under Article 368, therefore, cannot be exercised in
such a way so as to subvert or abrogate the Constitution.
 Thus the Constitutional amendments made under Article 368 can still be
challenged on the ground that they are destructive of the ‘basic features’ of
the Constitution.
 Fourth Stage:-
o In Minerva Mills Limited v. Union of India, AIR 1980 SC 1789, the Supreme Court by
4:1 majority struck down Clauses (4) and (5) of Article 368 inserted by the 42 nd
Page 27
Amendment Act, on the ground that these clauses destroyed the essential
feature of the basic structure of the Constitution. Since these clauses removed all
limitations on the amending power and thereby conferred an unlimited and absolute
amending power to the Parliament, it was destructive of the basic feature of the
Constitution.
The judgment of the Supreme Court thus makes it clear that the Constitution –– and
not the Parliament –– is supreme in India. This is in accordance with the intention of
the framers who adopted a written Constitution for the country.
o In this case, the Supreme Court has held that the following are the basic features of
the Constitution:
a) limited power of Parliament to amend the Constitution;
b) harmony and balance between fundamental rights and directive principles;
c) fundamental rights in certain cases;
d) power of judicial review in certain cases.
Independence of Judiciary is also a part of the basic structure of the Constitution. 45
o In Waman Rao v. Union of India, AIR 1981 SC 271, the Supreme Court held that all
amendment to the Constitution which were made before 24 th April, 1973 (i.e., the
date on which the judgment of Kesavananda Bharati was delivered) including those
by which the Ninth Schedule to the Constitution was amended from time to time
were valid and constitutional. But amendments to the Constitution made on or after
that date by which the Ninth Schedule was amendment were left open to challenge
on the ground that they were beyond the constituent power of Parliament because
they damaged the basic structure of the Constitution.
o In this case, the Supreme Court laid down,” All amendments to the Constitution
before April 24th, 1973 and by which the Ninth Schedule to the Constitution was
amended from time to time by inclusion of various Acts and Regulations therein are
valid and Constitutional. Amendments to the Constitution made on or after April
24th, 1973, by which the Ninth Schedule was amended from time to time by the
inclusion of various Acts and Regulations therein, are open to challenge on the
ground that they, or any one or more of them are beyond the constituent power of
the Parliament since they damage the basic or essential features of the Constitution
or the basic structure.”46
45
Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428. In this case appointment of a High Court Judge
was quashed on the ground that he was unqualified.
46
Waman Rao v. Union of India, AIR 1981 SC 271
Page 28
o In S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, the

constitutional validity of Article 323-A and the provisions of the Administrative
Tribunals Act, 1985, was challenged on the ground that the Act by excluding the
jurisdiction of the High Courts under Articles 226 and 227 in service matters had
destroyed the power of judicial review which was a basic feature of the Constitution.
The Supreme Court upheld the validity of Article 323-A and the Act as the necessary
changes suggested by the Court were incorporated in the Administrative Tribunal
Act. It held that though the Act has excluded the judicial review of High Court in
service matters under Articles 226 and 227, but as it has not excluded judicial review
under Articles 32 and 136, the Act is valid. The Amendment does not affect the basic
structure of the Constitution as it has vested the power of judicial review in an
alternative institutional mechanism, after taking it from the High Courts which is not
less effective than the High Courts.
o In Raghunath Rao v. Union of India, AIR 1993 SC 1267, the Supreme Court has
reiterated the proposition that the basic features of the Constitution cannot be
amended by following the procedure laid down in Article 368. The Court has
observed that the Constitution is the supreme law of the land and all organs of
government- executive, legislature and judiciary derive their powers and authority
from the Constitution. The Courts are entrusted with the important constitutional
responsibilities of upholding the supremacy of the constitution. The amendment of
the Constitution is only for the purpose of making the Constitution “more perfect,
effective and meaningful”. An amendment should not result in “abrogation or
destruction” of its basic structure or loss of its original identity and character and
render the Constitution unworkable”
If an amendment trespasses its limits and impairs and alters the basic structure or
essential features of the Constitution then the Court has power to undo that
amendment. “An amendment of the Constitution becomes ultra vires if the same
contravenes or transgresses the limitations put on the amending power because
there is no touchstone outside the Constitution by which the validity of the exercise
of the said powers conferred by it can be tested.”
The Supreme Court has stated that “unity and integrity of India” and the principle of
equality contained in Article 14 constitute the “basic structure” of the Constitution.
o In a landmark judgment in L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, a

seven-member Constitution Bench of the Supreme Court has unanimously while
reconsidering the Sampath Kumar’s case, has struck down Clause 2(d) of Article
Page 29
323-A and Clause 3(d) of Article 323-B which provided for the exclusion of the
jurisdiction of the High Courts under Article 226 and 227 and the Supreme Court
under Article 32 of the Constitution as unconstitutional and invalid as they damage
the power of judicial review which is the basic feature of the Constitution. The Court
has held that, “power of judicial review over legislative action vested in the High
Courts under Article 226 and the Supreme Court under Article 32 of the Constitution is
an integral and essential feature of the Constitution and formed part of its basic
structure.” ‘Ordinarily, therefore, the power of High Courts and the Supreme Court
to test the constitutional validity of legislations can never be ousted excluded’.
Following the Kesavananda Bharati’s case, the Court declared unconstitutional
Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B of the Constitution, to
the extent that they excluded the jurisdiction of the High Courts under Article 226
and 227 and the Supreme Court under Article 32 of the Constitution.
The Court said that while this jurisdiction cannot be ousted, other Courts and
tribunals may perform a supplemental role in discharging the powers conferred by
Article 226 and 227 and Article 32 of the Constitution, so long as the jurisdiction of
the High Courts under Articles 226 and 227 and of the Supreme Court under Article
32 is retained there is no reason the power to test the validity of legislations against
the provisions of the Constitution cannot be conferred upon Administrative Tribunals
created under Article 323-A and Article 323-B of the Constitution.
o In M. Nagraj v. Union of India, AIR 2007 SC 71, the petitioners challenged the
Constitutional validity of the Constitution 77th Amendment Act, 1995, introducing
Article 16 (4-A) nullifying number of decisions, the 81 st Amendment Act, 2000,
introducing Article 16 (4-B), introducing promotion in reservation also which was
stopped in Indra Sawhney’s case,47 and 82nd Amendment Act, 2000, introducing
proviso to Article 355 which emphasizes the importance of maintaining efficiency in
administration and the 85th Amendment Act, 2001, adding words –– with
consequential seniority in Article 16 (4-A) nullifying decisions in Ajit Singh’s case48 on
the ground that they violate basic features of the Constitution. However, a five Judge
Bench of the Supreme Court headed by Chief Justice of India, Sabharwal, J.
unanimously held that these amendments do not violate the basic feature of the
Constitution. They are enabling provisions and only apply to Scheduled Castes and
Scheduled Tribes. They do not obliterate constitutional requirements, such as ––
47
AIR 1993 SC 477
48
Ajit Singh Januja v. State of Punjab, 1996 AIR 1189 JT 1996 (2) 727.
Page 30
50% ceiling limit in Reservation, Creamy Layer Rule and post based roster sub-
classification between Other Backward Class (O.B.C.) on one hand, and Scheduled
Tribes (ST) on the other hand, as held in Indra Sawhney’s case. They do not alter the
structure of equality of codes, therefore, they are not beyond the amending power
of the Parliament.
o In I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 8617, headed by Chief Justice Y.K.
Sabharwal (comprising Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.P.
Thakker, P.K. Balasubramanyam, Altaman Kabil and D.K. Jain, JJ.) held that any law
placed in the Ninth Schedule after 24 th April, 1974, when Kesavananda Bharati’s
judgment was delivered will be open to challenge. The Court said that even though
an Act is put in Ninth Schedule by a Constitutional Amendment, its provisions would
be open to challenge on the ground that they destroy or damage the basic feature, if
the fundamental rights are taken away or abrogated pertaining to the basic feature
of the Constitution. The Ninth Schedule was introduced to the Constitution through
Article 31 (b) by the First Constitutional (Amendment) Act, 1951. The object of the
Ninth Schedule was to save Land Reform Laws enacted by various states from being
challenged in the court. Later on, it became an omnibus and every kind of law
whether it related to election, mines and minerals, industrial relations, requisition of
property, monopolies, coal or copper nationalization, general insurance, sick
industries acquiring the Altcock Ashdown Company, Kerela Chillies Act, Tamil Nadu
reservation of 69% and so on were inserted in it. No principle under lies this
selection. Today the total number of Acts, inserted in Ninth Schedule of the
Constitution is 284. The Tamil Nadu law in it was included because of the Supreme
Court’s rulings in the Indra Sawhney’s case that overall reservation cannot exceed
50%. In the instant case, the politicians had challenged the validity of the various
Central and State laws put in the Ninth Schedule including the Tamil Nadu
Reservation Act. The Court said that the validity of any Ninth Schedule law has been
upheld by the Apex Court and would not be open to challenge it again, but if a law is
held to be violative of Fundamental Rights incorporated in the Ninth Schedule after
the Kesavananda Bharati’s case, such a violation shall be open to challenge on the
ground that it destroys or damages the basic structure of the Constitution.
 Theory of Basic Structure:-
Page 31
The Theory of Basic Structure very effectively proved to be a limitation on the

amending power of the Parliament. The Basic Structure doctrine applies only to the
Constitutionality of amendments and not to ordinary Acts of Parliament, which must
conform to the entirety of the Constitution and not just its basic structure. The
theory of basic structure which cannot be altered by amendment, is gaining ground
internationally as a doctrine of constitutional interpretation which protects liberal
Constitutions of nascent democracies and prevents encroachments on peoples’
human rights.
Although the basic structure doctrine has been criticized as judicial legislation, it has
helped to protect the Constitution against dictatorial law-making or changes in the
Constitution that encroach upon the structural safeguards provided in the
Constitution to protect independent yet harmonious functioning of the three organs
of governance. Thus Rule of Law, judicial review and independence of the judiciary
have been considered as basic features of the Constitution. 49 Secularism has been
also considered as a basic feature.50 Equality under Articles 14 and 16(1) is basic
feature.51 Separation of powers and independence of the judiciary was again
considered basic in the case of Bal Mukund Sah.52
What then are the essentials of the basic structure of the Constitution? Although the
Judges enumerated certain essentials of the basic structure of Constitution, but they
also made it clear that they were only illustrative and not exhaustive. They will be
determined on the basis of the facts in each case.
In Kesavananda Bharati v. State of Kerela, the Judges has enumerated certain
essentials of basic structure theory. Most importantly seven of the thirteen judges,
including Chief Justice Sikri who signed the summary statement, declared that
Parliament's constituent power was subject to inherent limitations. Parliament could
not use its amending powers under Article 368 to 'damage', 'emasculate', 'destroy',
'abrogate', 'change' or 'alter' the 'basic structure' or framework of the Constitution.
 Each judge laid out separately, what he thought were the basic or essential features
of the Constitution. There was no unanimity of opinion within the majority view
either.
o Sikri, C.J. explained that the concept of basic structure included:
49
C. Ravichandran Iyer v. Justice A.M. Bhattaharjee, (1955) 5 SCC 457
50
Valsamma Paul v. Cochin University, (1996) 3 SCC 545.
51
Indra Sawhney II v. Union of India, (2000) 1 SCC 168.
52
State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640
Page 32
o supremacy of the Constitution

o republican and democratic form of government
o secular character of the Constitution
o separation of powers between the legislature, executive and the
judiciary
o federal character of the Constitution
o Shelat, J. and Grover, J. added two more basic features to this list:
o the mandate to build a welfare state contained in the Directive

Principles of State Policy
o unity and integrity of the nation
o Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic

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

found in the Preamble of the Constitution and the provisions into which they
translated such as:
o sovereign democratic republic

o parliamentary democracy
o three organs of the State
He said that the Constitution would not be itself without the fundamental
freedoms and the directive principles.
 Only six judges on the bench (therefore a minority view) agreed that the
fundamental rights of the citizen belonged to the basic structure and Parliament
could not amend it.
Page 33
 The minority view:-

The minority view delivered by Justice A.N. Ray (whose appointment to the position
of Chief Justice over and above the heads of three senior judges, soon after the
pronunciation of the Kesavananda verdict, was widely considered to be politically
motivated), Justice M.H. Beg, Justice K.K. Mathew and Justice S.N. Dwivedi also
agreed that Golaknath had been decided wrongly. They upheld the validity of all
three amendments challenged before the court. Ray, J. held that all parts of the
Constitution were essential and no distinction could be made between its essential
and non-essential parts. All of them agreed that Parliament could make fundamental
changes in the Constitution by exercising its power under Article 368.
In summary the majority verdict in Kesavananda Bharati recognised the power of
Parliament to amend any or all provisions of the Constitution provided such an act
did not destroy its basic structure. But there was no unanimity of opinion about
what appoints to that basic structure. Though the Supreme Court very nearly
returned to the position of Sankari Prasad (1952) by restoring the supremacy of
Parliament's amending power, in effect it strengthened the power of judicial review
much more.
 Limitations on the Constituent Power of Amendment:-
What are the limitations on the constituent power? The answer to this question is
found in Election case, Kesavananda Bharati case and the Miverva Mills case.
1. In the Election case, the Supreme Court pointed out that Parliament, acting in its
constituent capacity, cannot exercise judicial power itself directly without vesting
it in itself first by an amendment of the Constitution (Beg, J.). The resolution of
an election dispute by the amending body is not a law. It is either a judicial
sentence or a legislative judgment like of attainder (Mathew, J.).
2. Other limitations on the power of Parliament to amend the Constitution are laid
down by the Supreme Court in Kesavananda Bharati’s case. The Majority in that
case laid down the following propositions with regards to amendment of the
Constitution:
(a) The expression “Amendment of the Constitution” in Article 368 means “any
addition or change in any of the provisions of the Constitution within the
Page 34
broad counters of the preamble” and the constitutional

amendment does not include the repeal of the Constitution.
(b) There are no implied limitations on the power of the amendment.
(c) Article 13(2) is not applicable to an amendment of the Constitution.
Chandrachud, J. rightly pointed out that Article 368 avoids with scrupulous
care the use of the word “law”, because this is a fundamental distinction
between “constitutional law” and “ordinary law”.
3. In Minerva Mills case, the Supreme Court laid down the following principles:
(a) The power to destroy is not a power to amend.
(b) The Constitution is founded on a nice balance of power among the three
wings of the State, namely, the Executive, the Legislature and the Judiciary.
(c) The abridgement of a fundamental right may involve violation of basic
structure. It would all depend on the nature of the fundamental right, the
extent and depth of the infringement, the purpose for which the
infringement is made and its impact on the basic values of the Constitution.
Hence the Court concluded that “the conferment of the right to destroy the
identity of the Constitution coupled with the provision that no court of law
shall pronounce upon the validity of such destruction seems to be a
transparent case of transgression of the limitations on the amending power.”
4. Parliament, however, has no power to amend the basic features of the
Constitution.
 CONCLUSION:-
The problem of the nature and scope of constituent and amending power raised
ever since, Golak Nath’s case still remains unresolved. As a matter of strict law, it
remains possible to argue even now that Kesavananda Bharati’s case did not decide
that basic structural limitations contained the amending power; that the decision in
Indira Nehru Gandhi’s case was based on the concessions; that there is no warrant
either to accept the Kesvananda Bharati’s summary as binding or to accept the gloss
placed by Justice Khanna in Indira Nehru Gandhi as being elucidative of Kesavananda
rationes; and the Minerva Mills case and Waman Rao case in so far as they regard
either Kesavananda Bharati or Indira Nehru Gandhi as binding. This strategy of
argument remains open to the government in future and it is idle to say that it exists
Page 35
only by way of “flutter in ivory towers”. Indeed, the very arguments used by
the Court for rejecting ‘stare decisis’ may well apply to this strategy.
But even if the present holdings that Kesavananda judgment imposes basic
structural limitations on amending power is accepted as representing the
Constitutional consensus, the decisions so far do not fully elucidate what these
limitations precisely are. It appears however that certain limitations are emergent.
Firstly, a total repeal of the Constitution would be violative of basic structure.
Secondly, any expansion of Article 368 powers to achieve this consequence would
also be similarly violative. Thirdly, any attempt to deprive the court of the power of
judicial review over Constitutional amendments would also be transgressive of basic
structure. Fourthly, the power to amend may not be used to adjudicate specific
disputes. Fifth, the freedoms guaranteed by Article 14, 19 and 21 constitute limits to
power of amendment. Sixth, any attempt to abrogate Part IV of the Constitution may
violate the basic structure. Seventh, the ‘democratic’ nature of the Constitution may
not be validly transformed by the use of Article 368 power.
The scope of basic structure limitations on the amending power above and beyond
these seven categories remains indeterminate. It would appear that the Supreme
Court is inclined to delineate these limitations case by case, rather than abstractly.
Since Kesavananda Bharati case, the matter has been considered by the Supreme
Court in several cases and the Court has had occasion to declare several features of
the Constitution as fundamental features or basic structures of the Constitution.
It is generally agreed that all fundamental Rights do not constitute basic features. For
example, in Kesavananda itself it has been held that the right to property does not
pertain to the basic structure of the Constitution 53. Now that Article 31 has been
repealed, and Article 300-A included in the Constitution, right to property has ceased
to be a Fundamental Right, as well as basic feature of the Constitution. It is now
merely a constitutional right54.
We can say that Fundamental Rights as a whole may not form a basic
structure/feature of the Constitution but a certain Fundamental Right or some of
them together do form a very important part of the “Basic Structure” of the
Constitution.
53
Jilubhai Nanbhai Khachar v. State of Gujrat, AIR 1995 SC 142.
54
J.N. Khachar v. State of Gujrat AIR 1995 SC 154.
Page 36
The final word on the issue of Amendability of Fundamental Rights can be

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

 Constitutional Law of India by H.M. Seervai
 Interpretation of Statutes by Vepa P. Sarathi
 Oxford Dictionary of Law
 Black’s Law Dictionary
 Mitra’s Legal and Commercial Dictionary
 T.K. Tope’s Constitutional Law of India by Sujata V.
Manohar.
 The Constitutional Law of India by Dr. J.N. Pandey.
Page 37
 Indian Constitutional Law by M.P. Jain.

 Constitution of India (Bare Act).
 Supreme Court Cases.
 All India Reports.
 www.indiankanoon.org
 www.google.com
 Various Law Journals.
Page 38

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Assignment on Amendment Of Fundamental Rights

Faculty: Dr. Asad Malik

AMENDMENT OF FUNDAMENTAL RIGHTS

 Amendment of the Constitution:-

The machinery of amendment should be like a safety valve, so devised as neither to

The term “Amendment” must be construed in its natural meaning as “altered, by

 Modes of Amendment of the Constitution:-

There are two modes/types of Amendment of the Constitution. They are:

 Formal Mode of Amendment ––

a) Amendment by Simple Majority:

b) Amendment by Special Majority:

c) Amendment by Special Majority and Ratification by States:

d) Amendment under Article 368 of the Indian Constitution.

 Informal Mode of Amendment ––

The Informal mode of Amendment involves the amendment of the

Constitution. e.g., subject to the Fundamental Rights, the distribution of

Articles 12 to 35 of the Constitution pertain to fundamental rights. These rights are

 Importance of Fundamental Rights:-

o The Six Fundamental Rights are as follows:-

 POWER OF PARLIAMENT TO AMEND THE CONSTITUTION:-

(2) An amendment of this Constitution may be initiated only by the

 Article 368, was first amended by the Constitution (Twenty-fourth

Article 368 as it stood in 1949:

Article 368 as it stands after 1976:

 Principles relating to Amendment of the Constitution:-

 POWER OF PARLIAMENT TO AMEND THE FUNDAMENTAL RIGHTS:-

Article 12 states that:-

Article 13 states that:-

13. Laws inconsistent with or in derogation of the fundamental rights.––

because no law can be presumed to authorize anything unconstitutional. 35

o CONTROVERSY SURROUNDING THE AMENDABILITY OF

constitutional amendment which is made in exercise of constituent

 History of Amending Power of the Parliament in regard to Fundamental

 Doubts expressed in Sajjan Singh’s Case:

Judges) that there was no distinction between legislative and constituent

 Doctrine of Prospective Overruling (Meaning):-

 24th Amendment Act, 5th November, 1971:-

reform legislation in Kerela had affected the property of his

power………the validation of election cannot rest on clause (4).”

 42nd Amendment Act, 18th December, 1976:-

 42nd Amendment Act with reference to Article 368––

Encouraged by the decision in Kesavananda Bharati’s43 case, Clauses (4) and

 But the Constitution (42nd Amendment) Act, 1976, in so far as it inserted

 A question may be asked here, can we say that an amendment made by

Independence of Judiciary is also a part of the basic structure of the Constitution. 45

o In S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, the

o In a landmark judgment in L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, a

 Theory of Basic Structure:-

The Theory of Basic Structure very effectively proved to be a limitation on the

o supremacy of the Constitution

o the mandate to build a welfare state contained in the Directive

o Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic

o Jaganmohan Reddy, J. stated that elements of the basic features were to be

o sovereign democratic republic

 The minority view:-

 Limitations on the Constituent Power of Amendment:-

broad counters of the preamble” and the constitutional

The final word on the issue of Amendability of Fundamental Rights can be

Help was taken from the following sources:-

 Constitutional Law of India by Durga Das Basu.

 Indian Constitutional Law by M.P. Jain.

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