AMENDABILITY OF INDIAN CONSTITUTION: WHAT CONSTITUTES

THE BASIC STRUCTURE?

Abstract

Purpose/Research Objective – The purpose of this paper is to understand the “Basic

Structure Doctrine” by analysing various case laws. The objective is to highlight the issues
posed by the various decisions and look at the inconsistencies over the decades.

Approach – The research is doctrinal and while analysing various cases which pronounced
judgements on this issue, we have also viewed research papers and scholarly articles and
brought to light the opinions and issues which highlight the differences in various opinions
and help in understanding the Basic Structure.

Statement of Problem- The Constitution of India is a comprehensive text which tells us how
the country would function and what its ideals are. The importance and dynamic nature of
amendability of Constitution has also been scrutinized. However, the power to amend such a
textual document lies in the hands of the Parliament. The question which stands is whether
such a power could lead to its abuse and what restrictions are enough to curb such an abuse.
The paper also discusses the instances where the Parliament has made attempts to make its
amendability powers limitless and thus is arbitrary. There is absurdity due to the lack of
unanimity as to what the ‘Basic Structure’ is. This appears to be an obstacle for the future
decisions to be made by the courts when it comes to infringement of provisions included in
the basic structure. The paper goes on to further discuss the validity of Ninth Schedule.

Research Questions-
 What constitutes the “Basic Structure” of Indian Constitution
 Whether the Parliament can abuse its power to amend the Constitution under Article
368
 Whether the Supreme Court has made sufficient efforts to define and elucidate what
cannot be amended in the Constitution
Introduction:
Constitution, which is the ‘General Will’ of the people, is a document which fundamentally
characterises the position and power of various organs of the State. The way a nation operates
does not remain constant and therefore, laws framed during a certain period may not be
suitable to the other period as the circumstances and position of a nation changes constantly.
Apart from being the basic law of the land, it is a method by which the other laws are framed
as per the necessity of the nation. Thus, it becomes necessary to have tools to establish a
process through which the document, which lays down the fundamental law of the country
can be changed and made suitable to the new era. These changes are brought by using various
methods as given in the constitution and the various interpretations of judgements by the
Judiciary. For this purpose the makers of the constitution inserted Article 368 so that the laws
are amended in a proper and just manner.
It is the supreme deed of Independent India and Living Document of Nation. 1

Requirement of Constitutional Amendments:

The sine qua non for the Amendment of the Constitution can be emphasized as follows:
• If there had been no provision for the amendment, the people and the leaders would have
adhered to some extra constitutional means like revolution, violence and so on thereby
diluting the very constitution per se.
• Provisions for amendment of the constitution is made with a view to overcome the obstacles
which may be run into in future in working of the constitution.
• It is also essential in order to fix loop holes at the time when constitution was made.
• Ideals, primacy, and perception of the people vary greatly generation to generation.
Amendment is desirable in order to incorporate these.
Amending the Constitution of India is the process through which India’s supreme law can be
altered. This established procedure can be seen in our Constitution in Part XX, Article 36.
This is to ensure the timely concurrence with the current situation and keep a check on the
arbitrary power of the Parliament.

1
Samira A Runja, Silent Features of Constitution of India, Volume-7 | Issue-3 | March-2018,
https://www.worldwidejournals.com/paripex/recent_issues_pdf/2018/March/March_2018_1520252970__79.pdf
“Constitution must be amended with the needs and development of the country, but with
abundant caution for salvaging the basic rights of people. Amendment is a safety valve
provided to the constitution and if it is not provided, it may cause the blasting of the entire
structure and if any political party commands thumping majority in the parliament, they can
amend the constitution even denying the basic rights. Hence there should be protection of
fundamental rights from encroachment.2”

However, we can witness a tussle between the Parliament and the Supreme Court where the
Parliament wishes to have tremendous power to alter as they deem fit, but the Supreme Court
on the other hand tries to keep a control over it.

Precedents:
The question of amendability of Fundamental Rights first arose in the case of Shankari
Prasad v.Union of India3 where Article 31-A and 31-B which were added under Article 368
and were challenged as being unconstitutional. It was observed to be violative of Right to
Property which was then a part of Fundamental Rights. The Supreme Court held that it was
well within the purview of the powers of the Parliament to amend the constitution, including
the fundamental rights.
The issue again arose with similar judgement in the case of Sajjan Singh v.State of Rajasthan 4
which said that the words “amendment of the constitution” include amendability to all the
provisions given in the constitution. The five judge bench of the Supreme Court also pointed
out that the Parliament could assume the power to amend the Fundamental Rights even if it
was ultra vires under Article 368.
In the historical judgement in the case of Golakhnath v. State of Punjab 5 the above
aforementioned judgements were again brought under analysis and the eleven bench gave the
decision that Parliament cannot amend any provision of Part III of the constitution by a

2
Raveendran Nair and Legesse Tigabu Mengie, The Scope and Ambit of Amendment of the Constitution; a
Comparative study of the constitutions of India, USA and Ethiopia, Vol. 06, Issue, 04, pp. 7610-7616, April,
2016, https://www.journalijdr.com/scope-and-ambit-amendment-constitution-comparitive-study-constitutions-
india-usa-and-ethiopia
3
Shankari Prasad v.Union of India, (1951) SC 458
4
Sajjan Singh v.State of Rajasthan, (1965) 1 SCR 933
5
Golakhnath v. State of Punjab, (1967) 2 SCR 762
majority of six judges. However, three dissenting judges reaffirmed the decision of Sajjan
Singh and Shankari Prasad.

Analysis:
Questions brought into highlight through these cases-
 Amending power of Parliament
 Supremacy of constitution
 Basic Structure of constitution
 Separation of Power
The landmark judgement which aimed to answer all the above mentioned issues was
Keshavananda Bharti V. State of Kerala6  in which the core question about the power of
Parliament was answered and provided the best explanation as to the scope and definition of
the word Amendment which would include any alteration or change. A writ petition was filed
to challenge the validity of Kerela Land Reforms Act 1963 which was later amended in 1969
and 1971. After the amendment in 1971the Act was placed in the 9th schedule by the 29th
amendment when the writ petition was pending. The petitioner was also allowed to challenge
24th, 25th and 29th amendment. All the judges were of the view that the 24th amendment is
valid, and that by virtue of article 368 Parliament has the power to amend any or all of the
provisions of the Constitution including those related to Fundamental Rights of citizens. The
constitutional legitimacy of amendments was challenged before a full bench of the Supreme
Court including 13 judges. It said that the Parliament could amend any part of the
Constitution as long as it did not hamper the basic structure of the Constitution and the
judgement given in the Golaknath case was erroneous. It stated that “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 however
had his own views as to what constituted the basic structure. Out of 13 judges, only six
agreed that Fundamental Rights to be a part of Basic Structure. However, rest of the seven
judges held that the power to amend article 368 is subject to certain implied and inherent
limitations. The point to notice is that there was no unanimity on what was actually the basic
structure.

Sikri, C.J. explained that the concept of basic structure included:

6
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr., (1973) 4 SCC 225
• supremacy of the Constitution
• republican and democratic form of government
• secular character of the Constitution
• separation of powers between the legislature, executive and the judiciary
• federal character of the Constitution7

This structure could be observed to be based on the basic principle which was pointed out by
him ,i.e., the dignity and freedom of the individual and this cannot be destroyed by any form
of amendment .
Shelat, J. and Grover, J. added two more basic features to this list:
• the mandate to build a welfare state contained in the Directive Principles of State Policy
• unity and integrity of the nation8

Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:
• sovereignty of India
• democratic character of the polity
• unity of the country
• essential features of the individual freedoms secured to the citizens
• mandate to build a welfare state

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:
• sovereign democratic republic
• parliamentary democracy
• three organs of the State9

To begin with what constitutes the basic structure, the court found the following features to
be fundamental and therefore, non-amendable-
 Supremacy of the Constitution
 Republican and Democratic form of Government
 Secular character of the constitution
7
supra (SCC) 366, paras. 292-93
8
Supra (SCC) 454, para. 582.
9
Supra (SCC) 637-38, para.1159.
  Separation of powers between legislative, executive and judiciary
 Federal character of the Constitution
The case where the Supreme Court had the opportunity to practically apply Keshvananda
Bharti’s ruling regarding the non-amendability of the basic features was Indira Nehru Gandhi
v. Raj Narain10. The question of validity of Clause 4 in the constitution which was the thirty
ninth amendment arose. There were three things which formed to be part of this amendment-
1) To withdraw election of the Prime Minister and few other Union officials from the
scope of judicial process.
2) To void the High Court decision declaring Indira Gandhi’s election to the Lok Sabha
as void.
3) To exclude the Supreme Court’s jurisdiction to hear any appeal.11
This Amendment prima facie appeared to be destroying the basic feature of the Constitution
since it would encroach upon the judicial process. The contention was maintained by
Supreme Court and it declared Clause 4 to be unconstitutional.
It was also opined by Justice Chandrachud that the Principle of Basic Structure was
applicable only to Constitutional Amendments and not ordinary Legislations. CJ Ray stated
“The theory of basic structure is an exercise in imponderables. Basic structure and basic
features are indefinable.”
The Parliament being against such a decision was further trying to assure that such an
instance is not repeated in the future and thus, the law minister expressed his opinion that the
Supremacy of Parliament should be asserted when it comes to the amendability of the
Constitution. To achieve this objective two new clauses were added in Article 368 through
the 42nd Amendment. They went to the extent of trying to revive the Constitutional
Amendments which were previously held invalid. Moreover, the Parliament also tried to drop
the idea of the amendments being challengeable on the ground that “it has not been made in
accordance with the procedure laid down by this article.” This would mean that no
constitutional amendment can be challenged in a Court on any ground whatsoever.

To justify the new amendments to Article 368, the Law Minister argued that:
1- There is no such thing as a ‘basic feature’ which needs to be protected from amendment
and

10
Indira Nehru Gandhi v. Raj Narain, (1975) SC 2299
11
M.P. Jain, Indian Constitutional Law- 8th ed. page 1744
2- Where there is a constitutional amendment, the ‘supremacy of the Parliament’ has to be
considered.

These assertions made by the Law Minister appear to be unreasonable as there are provisions
in the Constitution which need special protection as they form the essence on which our
Constitution was formulated.
As for the second assertion made, the supremacy of the Parliament would actually mean
supremacy of the executive government because the government which forms the majority
and is backed by 2/3rd of the members could make any alterations to the provisions of the
Constitution as it deems fit. The other democratic countries also do not support the idea of
ultimate power being in the hands of one government and this is the essence of
‘constitutionalism’ as envisaged by the makers of our Constitution.
As we observe what is written in our Preamble, the law making power rests in the hands of
the People ultimately.12 If we scrutinise the statement mentioned above by the Law Minister,
it is implying that if a party comes in majority to the Parliament then the law making will be
subject to the personal interest of that party and not the nation as a whole.
Minerva Mills Limited v Union Of India 13 again attempted to define the Basic Structure of
our Constitution. The petition was filed in the Supreme Court to challenge the constitutional
validity of Clauses 4 and 5 of Article 368 introduced by Section 55 of the 42nd Amendment.
The newly introduced Clause 4 in Article 368 sought to deprive the courts of their power to
call in question or consider the validity of any amendment of the constitution made by the
Parliament. Clause 5 attempted to transgress the amendability power of the Parliament by
empowering the Parliament to exercise its constituent power without any “limitation
whatsoever”. The court in this connection stated that “Depriving the courts of power of
judicial review will mean making the Fundamental Rights a ‘mere adornment’ as they will be
rights without remedies. A 'controlled' Constitution will become 'uncontrolled'.”
This was a direct attack on the very foundation of the Constitution as it would allow the
Parliament to invade the rights of the citizens and eventually the country would cease to be a
democracy. If such an amendment was allowed, it could be seen to be a repetition of the
undemocratic circumstances which were previously observed during Emergency period
proclaimed by the government under Indira Gandhi.
12
Preamble : We the People of India in our Constituent Assembly… do hereby adopt, enact and give to ourselves this
Constitution.
13
Minerva Mills Limited v Union Of India, (1980) 3 SCC 625
The amendments were of the nature that they "virtually tore away the heart of the basic
fundamental freedoms"14 Therefore, they were held to be null and void.
Waman Rao V Union of India15 was the case where the first two issues addressed the
question of basic structure-
1) Whether in enacting article 31A (1) by the way of constitution amendment, the Parliament
transgressed its power of constitutional amendment.
2) Whether article 31A (1) gives sufficient protection to the laws included under it from
being challenged on the alleged ground of fundamental rights namely Articles 14, 19 and 31.

To understand the issues at hand, the Supreme Court put light on the first amendment, where
the government can acquire the property of the people, through which it introduced Article
31A with retrospective effect. Article 31B of Indian Constitution states that the amendment,
i.e., provisions of Article 31A are immune from review under Indian judiciary and cannot be
nulled on the basis that they might violate the fundamental rights mentioned in Articles 14,
19 and 31 of Indian Constitution. Four judges in the bench held that such an amendment did
not hamper the Basic Structure of the Constitution and aimed at reducing the economic and
social disparity. The objective behind such amendments was to abolish the zamindari system.
Hence, taking away a fundamental right is not material evidence to conclude that the basic
structure is being infringed upon.
Raghunath Rao v Union Of India16 was where the court observed that the Constitution is the
Supreme law of the land and all the three organs of Government namely Executive,
Legislative & Judiciary have derived their powers from the Constitution where their functions
have also been defined. It has been reiterated in the case that the Judiciary is responsible to
uphold the validity of the Constitution. Any amendment made in the Constitution should only
be done to give more clarity and meaning to the comprehensive document. There should be
no loss of originality nor should it defy the basic rights of the citizens. The Supreme Court
added that "unity and integrity of India" and the principle of equality contained in Article 14
constitute the Basic Structure of the Constitution. Any amendment which is ultra vires or
transgresses the capping of the basic structure shall not be a valid amendment.

14
Supra, chapters XXXIII, section A and XXXIV, section A
15
Waman Rao v Union of India, (1981) Supreme Court, 271
16
Raghunath Rao v Union Of India, (1993) SC 1267, 1287
In I.R. Coelho v State of Tamil Nadu17 the question which arose was whether an Act or
Regulation which gives the impression of being against the Fundamental Rights can be
reviewed if included under the Ninth Schedule which was a result of 31-B. The nine judge
bench which was led by Justice Y K Sabharwal upheld the previous judgement and
unanimously decided that such an Act or Regulation can be reviewed even if it is a part of
Ninth Schedule.

Literature Review:
Throughout history there have been various discrepancies as to define the power of the
Parliament and what shall constitute to be the non-amendable part of the Constitution. Hence,
we see that the question of composition of the Basic Structure shall always remain open
ended and ambiguous. In an article named The Ninth Schedule decision: Time to define the
Constitution’s Basic Structure written by Madhav Khosla 18, we observe an attempt is
made to bring the troubling questions of constitutional significance to light. The article
discusses the decisions of Kesavananda Bharati case and IR Coelho. It expresses the concerns
about the future of the Basic Structure doctrine and wishes to exhaustively define the same. It
also mentions about the solution presented by Ramaswamy Iyer who argues that the
Parliament should itself enact and define what the Basic Structure doctrine is. However, the
author disagrees with this solution because he believes that there shall be no consensus as to
what provisions of the Constitution would constitute the basic structure.
Nonetheless, we must not consider the entire solution to be impractical since during the
drafting of the Constitution, the consensus was difficult to reach by the constituent assembly,
yet we see that India has the lengthiest and most comprehensive constitution of all nations. It
has been observed that the constituents of basic structure have been dubious and therefore
have been changing from case-to-case. Thus, it becomes imperative for the law-making body
of our nation i.e., the Parliament to decide as to what the Basic Structure would be. While it is
important to do so, the Parliament is required to keep in mind that it does not take away or
abridge the power of the Judiciary. If this is done then we shall see an increase in the
accuracy of the decisions which are connected with the basic structure doctrine.
A strong critique regarding Article 31B which was incorporated to remove the hardships and
ensure that Part III is not removed in its entirety from the Constitution. It does come across in
17
I.R. Coelho v State of Tamil Nadu, (2007) 2 SCC 225
18
Madhav Khosla. “The Ninth Schedule Decision: Time to Define the Constitution's Basic Structure.” Economic and
Political Weekly, vol. 42, no. 31, 2007, pp. 3203–3204. JSTOR, www.jstor.org/stable/4419864. Accessed 5 Feb. 2020.
the first instance that 31B was enacted to protect the land reform legislations, as also
mentioned in the Research Paper- Belling The Cat which was written by Karishma D.
Dodeja.19 However, we must also take it be a law which came into existence to prevent the
government from using its powers in an ‘arbitrary and abusive’ manner. The author provided
with two alternative ways in which the effects of Ninth Schedule can be contained:
i) repeal Article 31B , validate land reform laws under Article 31A and insert a separate
schedule in the Constitution containing such protected laws; and
ii) amend Article 31B to include an indicia of the nature of laws that can be protected under
the said provision.

Such a solution which seems to be too harsh was put forward by the author since the
provision provided in the Ninth Schedule made it a ‘dumping vessel’ to protect the agrarian
law legislation. If we look at its actuality, we can basically put any of the State or Union
legislation in the Ninth Schedule. To find a placebo effect to this problem, the Supreme Court
in the Ninth Schedule judgement provided for two categories of statutes: the ‘preferred’
(Ninth Schedule) statutes which will have limited immunity and ‘non preferred statutes’
which will be subject to the full rigour of constitutional rights and freedom.20 Such distinction
does not seem to be of much help since the statutes can still be evaluated differently, had the
distinction not been made. Thus, the basis of putting a provision in the Ninth Schedule is
unclear and therefore, unsatisfactory. This is the reason why we see a number of advocates
and analysts criticise the Coelho decision and call the Ninth Schedule to be a constitutional
‘dustbin’.

Brooding Omnipresence to Concrete Textual Provisions: IR Coelho judgment and Basic

Structure Doctrine written by Kamala Sankaran21 has dwelled on hierarchy of fundamental
rights and emphasised that in the case of M. Nagaraj & Others v Union Of India & Others22

19
Dodeja, Karishma D. “BELLING THE CAT: THE CURIOUS CASE OF THE NINTH SCHEDULE IN THE INDIAN
CONSTITUTION.” National Law School of India Review, vol. 28, no. 1, 2016, pp. 1–17. JSTOR,
www.jstor.org/stable/44283661. Accessed 6 Feb. 2020.
20
https://timesofindia.indiatimes.com/edit-page/Constitutional-Dustbin/articleshow/1359898.cms
21
Sankaran, Kamala. “FROM BROODING OMNIPRESENCE TO CONCRETE TEXTUAL PROVISIONS: IR
COELHO JUDGMENT AND BASIC STRUCTURE DOCTRINE.” Journal of the Indian Law Institute, vol. 49,
no. 2, 2007, pp. 240–248. JSTOR, www.jstor.org/stable/43952108. Accessed 7 Feb. 2020.
22
M. Nagaraj & Ors v Union of India & Ors (2006) 8 SCC 212
the court stated that the basic structure need not be found in constitutional text alone. The
entire paper has briefed us about the facts of different cases without any probable or viable
solution. It goes on to discuss that some of the fundamental rights are termed as core and a
few as non-core. However, upon reading the Nagaraj case, we observe that only some of the
core values have been discussed. However, nowhere the mention of non-core values have
been made. In conclusion, the paper says “One must also dwell on some issues that could
have been raised but were not.” But the difficulty that readers might come across is the
absence of addressing any issue.
Hence an attempt in this scholarly article also does not adequately suffice to fulfil the need of
answering the questions regarding the questions of the Basic Structure.

Conclusion and Recommendations:

Although it has been agreed in various cases that the Parliament does not have the power to
amend the Constitution’s basic structure and that the basic structure if infrangible, we have
also seen the difficulty faced by the courts to decide what the basic structure actually means
and consists of. While it has been opinionated by many researchers that the basic structure
should be well defined, we are of the opinion that the ambit should always remain open
ended so that the basic structure becomes inclusive instead of being limited by their scope.
Although the basic structure needs to be inclusive, it is also required to follow a set pattern
i.e., the provisions that have already been declared as part of basic structure should remain to
be same- 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.23
There should be no ambiguity as to what is ‘already’ the part of basic structure.

Name- Arushi Malhotra

Co-author- Arpita Mittal

23
https://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdf