CONCEPT OF BASIC STRUCTURE AND CONSTITUTIONAL

AMENDMENT UNDER ART.368

THERE ARE THREE KINDS OF AMENDMENT UNDER ART.368

1. AMENDMENT BY SIMPLE MAJORITY

These Articles includes

Art. 5 to 11 (Citizenship)

Art. 169 (Abolishment and creation of legislative Council in States)

Art. 239 A (Creation of local legislature or Council of Ministers or

both for certain union territories)

These Articles are specifically excluded from the purview of the

procedure prescribed under Art.368

2. AMENDMENT BY SPECIAL MAJORITY

Articles which can be amended by special majority are laid down in

Art.368. All amendments, except those referred to above come within this
category and must be affected by a majority of total members of each
House of Parliament as well as 2/3 rd of the members present and voting.

3. AMENDMENT BY SPECIAL MAJORITY AND RATIFICATION

BY STATES

Ratification by States means that there has to be a resolution to that effect

by one –half of the state legislatures. These Article include

Art.54 (Election of President)

Art.55 (Manner of election of President)

Art.77 (Extent of executive power of the Union)

 Art. 167 (Extent of executive power of State)

Art. 124 to 147 (The Supreme Court)

Art. 214 to 231 (The High Court)

Art.241 (High Court for Union Territories)

Art. 245 to 255 (Distribution of legislative powers and Art .368)

Art. 368 (Parliament to amend the Constitution and Procedure

therefore)

 Sankari Prasad v. Union of India, (AIR 1951 SC 458) the validity of the
first amendment was challenged on the ground that it purported to
abridge the fundamental rights under part III of the Constitution. The
Supreme Court held that constitutional amendment will be valid even if it
abridge or takes away any of the fundamental rights.

 In Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845), the validity of

the 17th amendment Act 1964 was challenged on the ground of violation
of fundamental rights. The Supreme Court held that the word amendment
of the Constitution means amendment of all the provisions of the
Constitution.

 In Golaknath v. State of Punjab (AIR 1967 SC 1643) the Supreme Court

by a majority of 6 to 5 prospectively overruled its earlier decisions in
Sankari Prasad and Sajjan Singh cases and held that a Constitution
amendment is a law under Art 13 (3) of the Constitution therefore
parliament has no power from the date of that decision to amend part III
of the Constitution so as to take away or abridge the fundamental rights.
In order to remove difficulties created by the decision of Supreme Court
in Golaknath’s case Parliament enacted the 24th Amendment Act.

The 24th Amendment, not only restored the amending power of the
Parliament, but also extended its scope by adding the words, “to amend by
way of the addition or variation or repeal any provision of this Constitution in
accordance with the procedure laid down in this.
The amendment provided that nothing in Art. 13 shall apply to any amendment
made under this Article (Art. 368 (3))

Doctrine of Basic Structure

The doctrine of basic structure or framework of the Constitution owes its

evolution in the ratio of the majority judgments in Kesavananda Bharati case
in the year 1973 in which the Supreme Court held that while Parliament has the
power to amend any provision of the Constitution in accordance with the
procedure for amendment laid down by the Constitution itself. This power
cannot be so exercised as to alter or destroy the basic structure or framework of
the Constitution. Thus there are inherent limitations on the amending power of
parliament and Art 368 does not confer power so as to destroy the “Basic
Structure of the Constitution.” This was a new theory propounded by the
Supreme Court for Judicial review of Constitutional amendments.

The validity of the Constitution (24 th Amendment) Act 1971 was challenged in
Kesavananda Bharati v.State of Kerala (1973 4(SCC) 255 ), popularly known
as ‘Fundamental Rights Case’. The Court by majority 7 to 6 overruled the
Golaknath’s case which denied Parliament, the power to amend fundamental
rights. The Court held that under Article 368, the Parliament can amend the
Constitution without destroying the basic structure or framework of the
Constitution.

The nine signatories to the statement were Chief Justice S M Sikri, and Justices
J.M. Shelat, K.S. Hegde, A.N. Grover, B. Jaganmohan Reddy, D.G. Palekar, H
R Khanna, A.K. Mukherjee and Yeshwant Vishnu Chandrachud. Four judges did
not sign: A.N. Ray, K.K. Mathew, M.H. Beg and S.N. Dwivedi.

Following are the basic structure of the Constitution according to the Supreme
Court as laid down in Kesavananda Bharati’s, (1973) 4 SCC 225

1) Supremacy of the Constitution

2) Republican and democratic form of Government

3) Secular character of the Constitution

4) Federal character of the Constitution

 5) Separation of power between the legislative, the executive and the
judiciary

6) Sovereignty of the country.

7) Dignity of the individual

8) Unity and integrity of the nation

9) Parliamentary democracy and

10) Judicial review under Article 13.

In Indira Gandhi Case, (AIR1975 SC 1590), the Supreme Court applied the
theory of basic structure. The Supreme Court added the following features as
basic features of the Constitution.

(1) Rule of Law under Article 14

(2) Judicial Review under Article 13

(3) Democracy, which implies free and fair election Article 324

(4) Jurisdiction of the Supreme Court under Article 32.

In Order to remove the difficulty raised in Kesavanada Bharathi case

Parliament amended the Constitution in its 42nd amendment. This amendment
added clause 4 and 5 to Art. 368. Art. 368(4) provided that no Constitutional
amendment shall be called in question in any ground. . Art. 368(5) provided that
there shall be no limitation whatsoever on the constituent power of the
Parliament.

In Minerva Mills v. Union of India (AIR 1980 SC 1789), The Supreme Court
struck down clauses (4) and (5) of Art.368 on the ground that it violate judicial
review and 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 Kesavananda’s case. .

(1) Judicial review

(2) Democratic form of Government

(3) Rule of Law

In S.P Sampath Kumar v. Union of India (AIR 1987 SC 386) the

Constitutional validity of Art.323 (A) and the Administrative Tribunals Act was
challenged on the ground that it excluded the jurisdiction of High Court under
Art. 226 and Art.227. The Supreme Court held that Art 323(A) of
Administrative Tribunal Act was valid as it has not excluded judicial review
under Art.32 and Art. 136.

In Chandra Kumar V Union Of India ( AIR 1997 SC 1125 ) The Supreme

Court struck down clause 2 (d) of Art 323 A and clause 3 (d) of Art.323 B as
they excluded the jurisdiction of High Court under Art. 226 and Art 227 as well
as jurisdiction of Supreme Court under Art. 32 as they damage the power of
judicial review which is a basic feature of Constitution.

I R Coelho v. State of Tamil Nadu (AIR 2007 SC 861) This case is popularly
known as the Ninth Schedule case. It was decided by 9 judge bench presided by
Mr. Justice Y.K Sabharwal. In this case it was held that it is absolutely not
permissible to make the Ninth Schedule immunized from the judicial review of
the Constitution. The basic structure text would include review of Ninth
Schedule laws in the touchstone of the fundamental rights, therefore Ninth
Schedule is subject to judicial review if that law violates any of the fundamental
rights as the basic structure doctrine.

In Supreme Court Advocate-on-Record-Association and another v. Union of

India (AIR 2015 SC 1280), the Supreme Court struck down 99th constitutional
amendment and National Judicial Appointments Commission Act 2014 as it
violates the basic structure doctrines especially Rule of Law and Independence
of Judiciary.

It is clear that all laws and Constitutional amendments are subject to judicial
review and the Parliament’s power to amend the Constitution is not absolute
and the Supreme Court is the final interpreter of all Constitutional
Amendments.