LANDMARK CASES RELATING TO THE

BASIC STRUCTURE OF THE

CONSTITUION
November 9, 2015
1. Shankari Prasad case v. Union of India, 1951
2. Sajjan Singh v. State of Rajasthan, 1965
3. Golak Nath vs. The State of Punjab, 1967
4. Kesavananda Bharati v. The State of Kerala, 1973
5. Indira Gandhi v. Raj Narain, 1975
6. Minerva Mills Ltd. v. Union of India, 1980
7. Chandra Kumar v. Union of India, 1997
A brief on the above cases has been laid down below.
1. Shankari Prasad Case V. Union of India, 1951
Shankari Prasad Vrs. Union of India is a landmark case in the basic structure
of our constitution. In the cases, the power to amend the rights had been
upheld on the basis of Article 368. Chief Justice Subba Rao writing for the
majority six judges in special bench of eleven, overruled the previous
decisions.
2. Sajjan Singh v. State of Rajasthan, 1965
The validity of the Seventeenth Amendment was challenged in this case. The
main contention before the five-judge bench of the Supreme Court was that
the Seventeenth Amendment limited the jurisdiction of the High Courts and,
therefore, required ratification by one-half of the States under the provisions
of article 368. The court unanimously disposed of this contention, but
members of the court chose to deal with a second submission, that the
decision in the Shankari Prasad case should be reconsidered. The Chief
Justice (Gajendragadkar C.J.) in delivering the view of the majority
(Gajendragadkar C.J., Wanchoo and Raghubar Dayal JJ.) expressed their full
concurrence with the decision in the earlier case. The words amendment of
this constitution in article 368 plainly and unambiguously meant
amendment of all the provisions of the Constitution; it would, therefore, be
unreasonable to hold that the word law in Article 13(2) took in Constitution

Amendment Acts passed under article 368.

They went on to point out that, even if the powers to amend the fundamental
rights were not included in article 368, Parliament could by a suitable
amendment assume those powers. The Chief Justice also dealt in his
judgment with the wording of article 3lB. That article, he considered, left it
open to the Legislatures concerned to repeal or amend Acts that had been
included in the Ninth Schedule. But the inevitable consequence would be
that an amended provision would not receive the protection of article 31B
and that its validity could be examined on its merits.
Hidayatullah and Mudholkar JJ., in separate judgments, gave notice that they
would have difficulty in accepting the reasoning in Shankari Prasads case in
regard to the relationship of articles 13 (2) and 368. Hidayatullah J. said that
he would require stronger reasons than those given in that case to make him
accept the view that the fundamental rights were not really fundamental, but
were intended to be within the power of amendment in common with other
parts of the Constitution. The Constitution gives so many assurances in Part
III that it would be difficult to think that they were the play things of a special
majority. Mudholkar J. took the view that the word law in article 13 (2)
included an amendment to the Constitution under article 368.Article 368
does not say that when Parliament makes an amendment to the Constitution
it assumes a different capacity, that of a constituent body. The learned Judge
recalled that India had a written constitution, which created various organs
at the Union and State levels and recognized certain rights as fundamental.
3. Golak Nath vs. the State of Punjab (1967)
In 1967, in Golak Nath vs. The State of Punjab, a bench of eleven judges
(such a large bench constituted for the first time) of the Supreme Court
deliberated as to whether any part of the Fundamental Rights provisions of
the constitution could be revoked or limited by amendment of the
constitution.
Secondly, the Supreme Court of India gave a momentous judgement on the
28th February ,1967 in the famous case of Golak Nath & others Vrs. State of
Punjab by declaring that the Fundamental Rights were transcendental and
inviolable and the Parliament of India had no power to take away or abridge
any of the Fundamental Rights guaranteed by the Constitution by way of the
Constitutional amendments. Their lordship felt that the liberty of the

Individual in the Indian Constitution is subject to various reasonable

restrictions which are expressly mentioned in the Constitution and that no
further limitations should be imposed on it at any time.
4. The Kesavananda case (1973)
The decision of the Supreme Court in the Golak Nath Case has created a
constitutional deadlock. The deadlock was over in the famous case of
Keshavananda Bharati and Others vrs.State of Kerala in 1973. The Supreme
Court recognized basic structure concept for the first time in the historic
Kesavananda Bharati case in 1973. Ever since the Supreme Court has been
the interpreter of the Constitution and the arbiter of all amendments made
by parliament. The court by majority overruled the Golak Nath case which
denied parliament the power to amend fundamental rights of the citizens. In
this case the petitioners challenged the validity of the 24th, 25th, 26th and
29th constitutional amendments.
This decision is not just a landmark in the evolution of constitutional law, but
a turning point in constitutional history. It is a landmark of the Supreme Court
of India, and is the basis in Indian law for the exercise by the Indian judiciary
of the power to judicially review, and strike down, amendments to the
Constitution of India passed by the Indian Parliament which conflict with or
seek to alter the Constitutions basic structure.
5. Indira Gandhi v. Raj Narain, (1975)
Basic Structure concept reaffirmed in this case. The Supreme Court applied
the theory of basic structure and struck down Cl(4) of article 329-A,which
was inserted by the 39th Amendment in 1975 on the ground that it was
beyond the amending power of the parliament as it destroyed the basic
feature of the constitution.
Four basic features
Justice Y.V. Chandrachud listed four basic features which he considered
unamendable:
Sovereign democratic republic status.
Equality of status and opportunity of an individual.
Secularism and freedom of conscience and religion.
Government of laws and not of men i.e. the rule of law.
42nd Amendment

After the decision of the Supreme Court in Keshvanand Bharti and Indira
Nehru Gandhi case the constitution (42nd Amendment) Act, 1976 was
passed which added two new clauses, namely, clause (4) and (5) to Art.368
of the Constitution. It declared that there shall be no limitation whatever on
the constituent power of parliament to amend by way of addition, variation
or repeal of the provisions of the Constitution under this Article.
This Amendment would put an end to any controversy as to which is
supreme, Parliament or the Supreme Court. Clause (4) asserted the
supremacy of the parliament. It was urged that Parliament represents the will
of the people and if people desire to amend the Constitution through
Parliament there can be no limitation whatever on the exercise of this power.
This amendment removed the limitation imposed on the amending power of
the Parliament by the ruling of the Supreme Court in Keshvanand Bhartis
case. It was said that the theory of basic structure as invented by the
Supreme Court is vague and will create difficulties. The amendment was
intended to rectify this situation.
6. Minerva Mill v. Union of India (1980)
In this case of Minerva Mill v.Union of India, the validity of 42nd amendment
Act was challenged on the ground that they are destructive of the basic
structure of the Constitution. The Supreme Court by majority by 4 to 1
majority struck down clauses (4) and (5) of the article 368 inserted by 42nd
Amendment, on the ground that these clauses destroyed the essential
feature of the basic structure of the constitution. It was ruled by court that a
limited amending power itself is a basic feature of the Constitution. The
historical Judgment laid down that: The amendment made to Art.31C by the
42nd Amendment is invalid because it damaged the essential features of the
Constitution. Clauses (4) and (5) are invalid on the ground that they violate
two basic features of the Constitution viz. limited nature of the power to
amend and judicial review. The courts cannot be deprived of their power of
judicial review. The procedure prescribed by Cl. (2) is mandatory. If the
amendment is passed without complying with the procedure it would be
invalid. The Judgment of the Supreme Court thus makes it clear that the
Constitution is Supreme not the Parliament. Parliament cannot have
unlimited amending power so as to damage or destroy the Constitution to
which it owes its existence and also derives its power.

The Fundamental Rights and the Directive Principles are required to be

viewed as the two sides of the same coin. Both should be complementary to
each other and there should be no confrontation between them.
Undoubtedly, Part IV (containing the Directive Principles) is a part of the
Constitution. Even though the Directives are not enforceable in the Courts of
law, Article 37 clearly says that it shall be the duty of the State to apply
these principles ill making laws.
An undue importance on civil liberties and rights in total disregard of the
need to bring about social and economic justice, may lead to a mass
upheaval. Any importance on the Directive Principles alone, in total disregard
of the rights and liberties, may lead to totalitarianism. Hence a harmonious
balance should be maintained between Part III and Part IV of the Constitution
and real synthesis should come out only from harmonising the spirit of
political democracy with the spirit of economic democracy.
7. Chandra Kumar v. Union of India (1997)
Article 323-A and 323-B, both dealing with tribunals, were inserted by the
42nd Amendment. Clause 2(d) of Art.323-A and Clause 3(d) of 323-B
provided for exclusion of the jurisdiction of the High Court under Art.226 and
227 and the Supreme Court under Art.32.
Majority Judgment:
The judgment of CJ Sikri held that fundamental rights conferred by Part III of
the Constitution cannot be abrogated, though a reasonable abridgement of
those rights could be effected in public interest. There is a limitation on the
power of amendment by necessary implication which was apparent from a
reading of the preamble Every provision of the Constitution was open to
amendment provided the basic foundation or structure of the Constitution
was not damaged or destroyed.
Verdict of the Judgment
Parts III and IV of the Constitution which respectively embody the
fundamental rights and the directive principles have to be balanced and
harmonized.
This balance and harmony between two integral parts of the Constitution
forms a basic element of the Constitution which cannot be altered.
The word amendment occurring in Article 368 must therefore be
construed in such a manner as to preserve the power of the Parliament to

amend the Constitution, but not so as to result in damaging or destroying the

structure and identity of the Constitution.
There was thus an implied limitation on the amending power which
precluded Parliament from abrogating or changing the identity of the
Constitution or any of its basic features.
Chief Justice Sikri listed Basic Structure features
The supremacy of the constitution.
A republican and democratic form of government.
The secular character of the Constitution.
Maintenance of the separation of powers.
The federal character of the Constitution.
Justices Shelat and Grover listed Basic Structure features
Maintenance of the unity and integrity of India
The sovereignty of the country
The sovereignty of India
The democratic character of the polity
The unity of the country
Essential features of individual freedoms
The mandate to build a welfare state
CONSTITUTIONAL IMPLICATIONS
The Supreme Court in this case held these provisions as unconstitutional
because they deny judicial review which is basic feature of the Constitution.
It held that the power of judicial review vested in the High court under
Art.226 and right to move the Supreme Court under Art.32 is an integral and
essential feature of the Constitution.

he following listed provisions are widely accepted constituent of basic structure of the
constitution:

Supremacy of the Constitution

Rule of law

The principle of Separation of Powers

The objectives specified in the Preamble to the Constitution

Judicial Review

Articles 32 and 226

Federalism

Secularism

The Sovereign, Democratic, Republican structure

Freedom and dignity of the individual

Unity and integrity of the Nation

The principle of equality, not every feature of equality, but the quintessence of
equal justice;

The essence of other Fundamental Rights in Part III

The concept of social and economic justice to build a Welfare State: Part IV in
toto

The balance between Fundamental Rights and Directive Principles

The Parliamentary system of government

The principle of free and fair elections

Limitations upon the amending power conferred by Article 368

Independence of the Judiciary

Effective access to justice

Powers of the Supreme Court under Articles 32, 136, 141, 142

Legislation seeking to nullify the awards made in exercise of the judicial power of
the State by Arbitration Tribunals constituted under an Act.