Introduction:

Constitution determines the powers of its different organs, providing for powers to
Parliament as well as State Legislatures to legislate in their respective jurisdiction.
However, this power is not absolute in nature but is subject to judicial scrutiny of the
Courts. Judiciary has power to adjudicate the constitutional validity of laws and for that
purpose it can even strike down any law which is inconsistent with constitutional
provision. This power of the courts thus makes the provisions in the constitution
sacrosanct and thus defeats the real intention of the makers of the constitution to make it
an adaptable and dynamic document rather than a rigid framework of governance. This was the
reason a counter weapon in form of power to amend constitution vide Art. 368 was
given to the legislatures by the constitution itself so as to make the constitution adaptable
to the contemporary circumstances. However, this power is not absolute and a countercheck was imposed on the legislatures by making judiciary the watch-dogs of the
amending powers of the legislature. The Supreme Court with intentions to protect the
basic and original ideals of the makers has acted as a check over the legislative enthusiasm
of Parliament ever since independence. The apex court has pronounced that Parliament
could not distort, damage or alter the basic features of the Constitution under the pretext
of amending it. The phrase 'basic structure' itself cannot be found in the Constitution.
The Supreme Court recognised this concept for the first time in the historic Keshavanad
Bhartis1 case in 1973.
For the purpose of studying the history of Indian constitutional amendments and
how judiciary has countermanded the legislative actions of amending constitution, the
history can be divided in Four Periods:
Period starting from 1951 with Sankari Parasads2 judgement and ending with I.C.
Golaknaths3 judgement in 1971.
Period starting with post Golaknath scenario and ending in 1973 with Keshawanand
bhartis judgement.

His Holiness Kesavananda Bharati Sripadagalavaru v. State Of Kerala And Another: 1973 (4) SCC 225
(1952) S.C.R. 89
3 AIR 1971 SC 1643
1
2

Electronic copy available at: http://ssrn.com/abstract=1688864

 Period Starting with post Keshavanand Bhartis senario and ending with Indira Nehru
Gandhis4 case.
The Fourth period is still continuing with us. This period has witnessed judgement like
Minerva Mills case5 and Vaman Raos6 case which discussed consequences of
Keshavanad Bhartis case and modified the result of Keshavanad Bharti.

1st Period - Sankari Prasads Case to Golknaths Judgement

Parliament's authority to amend the Constitution, particularly the chapter on the
fundamental rights of citizens, was challenged as early as in 1951 7. After Independence
many laws relating to land reforms and tenancy matters were enacted and their
constitutional validity was challenged. The land reforms introduced as per the electoral
promise of the ruling congress party of implementing the socialistic goals. At that time
the Zamindari system was in vogue and congress party in pretext of giving effect to the
Constitutional provisions contained in Article 39 (b) and (c) of the Directive Principles of
State Policy, which envisaged equitable distribution of resources of production among all
citizens and prevention of concentration of wealth in the hands of a few, introduced land
reform acts which adversely affected the right to property of the property owners 8.
The courts struck down the land reforms laws saying that they transgressed the
fundamental right to property guaranteed by the Constitution. Such a judgement was a
direct mockery of the legislative power of the legislature which they had perceived to be
absolute. Aggrieved by the unfavorable judgements, Parliament placed these laws in the
Ninth Schedule of the Constitution through the First and Fourth amendment (1951 and
1952 respectively), thereby effectively removing them from the scope of judicial review9 .
The basic question raised has been whether the Part III of constitution can be amended
so as to dilute or take away any fundamental right? Since 1951 there have been several
(1976) 2 S.C.R. 347
(1980) A.SC. 1789
6 (1983) A.SC. 239
7 1st constitutional Amendment was challenged in Shankari Prasads case
8 That time a fundamental right under article 19(1)(f) later removed by Constitutional 44 th amendment.
4
5

Electronic copy available at: http://ssrn.com/abstract=1688864

amendments in the Fundamental rights which have curtailed, to some extent, the scope
of some of these rights.
Shankari Prasad Singh v. Union of India
Shankari Prasad v. Union of India10 was the first case on amenability of constitution, the
validity of the Constitution (First Amendment) Act, 1951, curtailing the right to property
guaranteed by Art. 31 was challenged.
The amendment was challenged on the ground that it takes away or abridges the rights
conferred by Part III which is prohibited under Article 13(2) and hence was void. Article
13(2) provides that any law passed by state contravening the provisions under Part III i.e.
Fundamental Rights would be considered void to the extent of contravention. It was
argued that State in Article 12 included Parliament and the word Law in Article 13(2)
therefore must include Constitutional Amendment.

Hence it was contended that

amendments are Law passed by state as for the purpose of article 13(2). Supreme Court
rejected the above argument and held that power to amend the Constitution including
the fundamental rights is contained in Article 368 and though constitutional amendment
is a Law there is a clear distinction between legislative and constituent power. The word
Law in Article 13(2) includes only an ordinary law made in exercise of the Legislative
powers and does not include constitutional amendment which is made in exercise of
constitutional power.
The Supreme Court ruled that a constitutional amendment, not being law under
article 13(2), will be valid even if it abridges or takes any of the fundamental
rights.
SAJJAN SINGH V. STATE OF RAJASTHAN11
In this case the validity of the Constitution (17th Amendment) Act, 1964 was challenged.
This amendment again adversely affected the right to property under Art. 19(f) by
inserting certain other land acquisition acts in the 9th schedule. Similar question as that in
Shankari Prasads case was raised in this case also. Supreme Court approved the majority
10
11

AIR 1951 SC 458

AIR 1965 SC 845

judgement given in Shankari Prasads Case and held that the words amendment of the
Constitution means amendment of all the provision of the Constitution i.e. Article 368
extends to all the parts of the constitution.
GOLAKNATH v. STATE OF PUNJAB12
The question to the amending power of the legislatures as envisaged under Article 368
was again raised in Golaknaths case. The constitutional validity of the Constitution
(Seventeenth Amendment) Act which inserted certain state acts in Ninth Schedule again,
was challenged.
The majority in 6:5 ratio, prospectively overruling the earlier judgements of Shankari
Prasad and Sajjan singhs case, held that the Parliament had no power from the date of this
decision to amend Part III of the Constitution so as to take away or abridge the
fundamental rights.
Chief Justice Subba Rao, in this case put forth the curious position that Article 368,
containing the provisions related to the amendment of the Constitution, merely lays
down the amending procedure. Article 368 did not confer upon Parliament the power to
amend the Constitution. The amending power which is a constituent power of
Parliament arose from other provisions contained in the Constitution (i.e. Articles 245,
246, 248) which gave it the power to make laws (plenary legislative power). Thus, the
apex court held that the amending power and legislative powers of Parliament were
essentially the same and therefore, any amendment of the Constitution must be deemed
to be a law as understood in Article 13 (2).
The majority judgement invoked the concept of implied limitations on Parliament's
power to amend the Constitution. This view held that the Constitution gives a very
sacrosanct place to the fundamental rights and while giving to themselves the
constitution, the people of India, have reserved these rights for themselves which is
clearly expressed in the words of Art 13(2). Parliament could not modify, restrict or
impair fundamental freedoms due to this very scheme of the Constitution and the nature
of the freedoms granted under it. They observed that a Constituent Assembly might be
12

(1967) 2 S.C.R. 762

summoned by Parliament for the purpose of amending the fundamental rights if

necessary.
POLITICAL CONSEQUENCES OF THE VERDICT:
The verdict in Golaknaths case led to direct conflict of power between the parliament and
judiciary. The ruling government suffered heavy losses of votes in parliamentary elections
as it failed to fulfill its promises. The power conflict led the government to introduce a
bill seeking to restore supremacy of parliament which was later not pressed because of
some political compulsions.13 But hungry to prove it supreme, parliament again, under
the pretext of ensuring equitable distribution of wealth and resources, introduced two
major lines of laws, one related to nationalization of banks and other related to derecognition of Privy Purses.
Supreme Court struck down both the moves of the parliament14. Now the basic question
had shifted as to the relative position of directive principles and the fundamental rights.
This led to a political situation which the Indian history had never witnessed. Judiciary
and Parliament were at loggerhead in proving their supremacy. For the first time, the
Constitution itself became the electoral issue in India. In 1971 and 1972 many
amendments were carried on to establish the supremacy of parliament over constitution.
2ndPeriod- Post GolakNath scenario Keshavanand Bhartis case
This period started with the foundation of Golaknaths case judgement. The concept of
implied restriction on the power of the parliament was recognized and to some extent the
legislative supremacy was curtailed. Under the urge to prove its supremacy, parliament
came up with many constitutional amendments. The 24th amendment brought in some
changes in art 368 and 13 expressly displacing the reasons on which Golaknaths
judgement was based. 25th amendment amended Article 31 and introduced Article 31 C
A bill was introduced to amend the Article 368 and even a select committee was appointed to examine the
witnesses and submit report. But bill was further not pressed because of the judgement in Shantilal Mangaldass case(
(1969) 3 S.C.R 341) which gave effect to 4th amendment making adequacy of compensation not justiciable. This was
a clear win of parliament over judiciary. However this amendment ass nullified later in Bank nationalization case
((1970) 3 S.C.R 530) and thus the conflict was restored.
14 Bank nationalization case ((1970) 3 S.C.R. 530) nullified 4th amendment and Privy Purses case (Madhav Rao Scindhia v.
Union(1971) 3 S.C.R. 9) held that the justiciable right to property to the rulers of India had been granted clearly
under Article 291 and parliament cannot take that away.
13

for giving higher sanctity to Directive Principles of State policy than fundamental rights.
26th amendment abolished privy purses and thus rendered Madhav Rao Scindhias case
ineffective. 29th amendment further added two Kerela acts to 9th schedule. These
amendments being over-ambitious were inevitably challenged in Keshavanands cae and
other petition. C.J Sikri constituted a 13 judge bench to reconsider Golaknath judgemet 15
and deal with the petitions against these amendments.
Keshavanand Bharati v. State of Kerala16
This is a landmark case in history of constitutional amendment in India. All judges held
that 24th amendment is valid as Article 368 confers power to amend all or any of the
provisions of constitution. Majority of judges held that judgment in Golaknaths case was
wrong and that the power to amend was very much there under Article 368. Seven judges
took the view that basic structure cannot be amended17. The phrase 'basic structure'
was introduced for the first time by M.K. Nambiar and other counsels while arguing for
the petitioners in the Golaknath case, but it was only in 1973 that the concept surfaced in
the text of the apex court's verdict18
The basic structure doctrine was defined and it was held that the power to amend is
channelized and limited. Khanna J. along with other six judges agreed with this theory.
Rest of the six judges held that it is an absolute power in hands of the parliament. So
Supreme Court with a majority of 7:6 decided that some parts of the constitution which
gives it a meaning cannot be changed or amended. However, only six out of the seven
majority judges, with Khanna J. dissenting, held that fundamental rights form the basic
structure of the constitution and hence are un-amendable.

15It

is interesting to note here that even Sikri C.J. and Shelat J. who were part of the majority judgment in
Golaknaths case did not expressed any opinion on the Article 368 but sub silentio overruled Golaknaths case
judgement.
16 AIR 1973 SC 1461
17 The phrase 'basic structure' was introduced for the first time by M.K. Nambiar and other counsels while arguing
for the petitioners in the Golaknath case, but it was only in 1973 that the concept surfaced in the text of the apex
court's verdict as mentioned in :
www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdf
Last
visited on 30th of Sep., 2008

So, again Supreme Court with a majority of 7:6 held that in the fundamental rights per se
are amendable.
So as far as the issue of amendability of the constitution is concerned, it was held that
constitution is amendable to the extent it does not affects the basic structure of the
constitution. However this judgement was not specific as to what forms the basic
structure of the constitution. Judges gave their own examples of basic structure and
enumerated few of them but that list was not held to be exhaustive.
Keshavanads case proved that the Parliament is not sovereign in Indian context and its
power is not absolute but channelized and controlled.
3rd Period: Post Keshavanad Bharti Judgment to Election case19
Till now the judgements were in regards to the specific amendment which were related to
the property issues, even the challenge to 24th amendment was made under the same
context. The Constitutional (39th amendment) Act, 1975 inserted Article 329A.
According to clause (4) of the amendment election of a candidate cannot be challenged in
court of law. This amendment was passed when an appeal against Allahabad High
Courts judgement dismissing the election of Mrs. Indira Gandhi as Prime minister was
pending in the Supreme Court. In this appeal and a cross appeal against the new
amendment filed by Mr. Raj Narayan, popularly known as Election Case, for the first
time, an amendment was challenged not on property issue or social welfare but with
reference to the law designed for free and fair election which forms the base of
democratic parliamentary form of government. Not only that the amendment decided an
election dispute between two contesting parties but also decided a pending appeal in
Supreme Court.
This case introduced new dimensions to the judgement given in Keshavanads case. 20
Although the amendment was upheld but the provision curbing judiciarys right to keep a
Indira Nehru Gandhi v. Rajnarayan: Supra 4
In Election case for the first time the judges had to considered words constituent power and law introduced
by constitutional 24th amendment held valid in Keshavanads case. More over in Keshavanads case basic question
was regarding amendibility of a fundamental right while here it was amendibility of essential feature of representative
government namely free and fair election.
19
20

check on elections was struck down. The doctrine of basic structure was widened and it
was held that free and fair election being a part of basic structure cannot be amended.
Mrs. Gandhi's election was declared valid on the basis of the amended election laws. The
judges grudgingly accepted Parliament's power to pass laws that have a retrospective
effect. The Supreme Court rejecting the argument of Mr. Shanti Bhushan ruled that the
doctrine of basic structure is restricted only to the amendment of the constitution not to
other ordinary legislation.
4th period: Post Election case to the present scenario
After the decision in Election case reiterating that there are few features which are so
basic to the constitution that without them constitution cannot stand in its true spirits.
Such features cannot be amended. Aggrieved by this decision the Parliament came up
with 42nd Constitutional amendment amending, interalia, Article 368 making the power
almost absolute.21
In Minerva Mills case the validity of 42nd constitutional amendment was challenged. All
five judges held the amendment to be void. This case further held that the amended art
31 is void and it upheld that there is harmony between fundamental rights and directive
principles and they cannot be at conflict with each other.
Further Waman Raos case unanimously upheld Minerva mills judgement that amendments to
article 368 introducing Cls. 4 and 5 are void. It was further held in this case that all laws
placed in 9th Schedule after Keshavanand Bharti judgement are also available for judicial
review. This was further widened by I.R. Coelho v. State of Tamil Nadu.

Conclusion:
The basic structure doctrine had been applied by the judges every now and then. It
has till date proved to be a very effective tool in deciding the validity of the
constitutional amendments. The doctrine, however, had not yet been defined in any
of the judgements adequately and sufficiently. This can be taken to be a positive part
The amendment introduced two sub clauses in Article 368. According to clause (4) no constitutional amendment
can be challenged in courts and clause (5) was for clarifying the doubt that no limitation can be imposed on the
constituent power of the legislature.
21

as it leaves it to the court to decide according to the facts of the case whether the
amendment is affecting basic structure of the constitution or not. If an exhaustive list
is provided for this purpose then that might have led to a situation where the
Supreme Court would fail to protect the integrity of the situation. There are many
things which are basic to the constitution and they cannot be decided beforehand.
The major objections against the doctrine of basic structure are:

Amending power is not necessary to amend non-essential parts of the

constitution.

This power is needed to make changes in the basic features of the

constitution.

The doctrine leads to the uncertainty in mind of the parliament as to where it

stands as to the extent of its amending power.

Seervai22 in his book has dealt with these objections to the doctrine of basic structure.
It was put forth by him that between fundamental features of the constitution and the
non-essential parts of the constitution there is a huge range of articles with a varied
degree of importance. The doctrine only restricts itself to those features which are
very basic to the existence of the constitution itself and thus cannot be altered.
However, many other articles which are of very high importance have been allowed to
be altered. For example, power cede territory is very important power and this was
allowed to be altered in Berubari judgement23.
Moreover many amendments in the lists have been allowed to be done. These
amendments had either taken away some powers of the states and increased the
power of the centre or vice-versa. In a federal constitution the distribution of
legislative power between the constituents is of very high importance and power to
amend such an important provision has been given to the parliament. So it is wrong
22
23

Seeravi H.M. Constitutional Law of India Universal Publication, Ed. 4 Vol. 3 at Pg.3159
AIR 1960 SC 845

on the part of the parliament to contend that they have been given power to amend
only non-essential parts of the constitution and that they are not allowed to make
changes in the fundamentals of the constitution. Thus first two objections are baseless
and doctrine of basic structure stands unaffected by them
The last relevant objection against the doctrine is also baseless. Seervai24 has gives
some illustration in his book showing that there are many things in the legal field
which cannot be defined with certainty. They are not defined with certainty because
such things cannot be given a rigid definition. For example, reasonableness,
negligence, natural justice etc. cannot be defined with certainty. Moreover it has to be
seen that even if the objection is taken to be right whether the consequences of not
applying this doctrine would be better than that of applying the doctrine. As we have
seen already in Election case if parliaments power is left unfettered it might lead to
tyranny. It is, therefore, submitted that the doctrine has done more good than wrongs.
Agreed that the doctrine puts the parliament in an uncertain position but that is
justified as it prevents more evil by allowing lesser one.
It is agreed that the amendment is a very important power which is given to the
parliament. It is in a sense itself a basic structure of the constitution. Mahavir Tyagi
during debates on draft constitution held that a constitution which was unalterable was
practically a violence committed on the future generation.25 It is thus necessary to have some
fixed procedure to make constitution adaptable from time to time. However, to
determine the degree to which constitution can be amended is an equally important
task. The courts have done a great service to the nation by declaring that there are
certain basic features of the constitution which cannot be amended.
It has necessarily pointed out to the parliament that constitution is not any partys
manifesto which can be changed at their own will but is a national heritage which can
be amended only when a national consensus demands for it.

24
25

Supra 27 at pg. 3160

B Shivarao, The Framing of Indian Constitution, Universal Law Publications, Ed. 2nd Pg. no. 832