Amendment of Indian Constitution Basic Structure Theory / Doctrine Kesavananda Bharathi Golak Nath Art 368

1. Amendment of the Constitution
and
Basic Structure Doctrine (BSD)
Gagan K

2. Amendment of Constitution
• Basic Structure theory, Amendment of
Constitution, Art. 13, Ninth Schedule are
all related to each other.
• One needs to have a prior understanding
of Art. 12, 13 and Fundamental Rights in
order to understand the Amendment and
Basic Structure Theory
• We start from Amendment of Constitution
and proceed to the Basic Structure theory

3. Amendment under Indian
Constitution
• Art. 368 – Power of Parliament to amend
the Constitution and procedure therefor
• Amendments fall under 3 categories
– 1. Effected by simple majority
– 2. Effected by special majority (2/3rd)
– 3. Effected by special majority + ratification by
states

4. First category
All these are specifically excluded from the ambit
of Art. 368
• Simple majority
• Art. 4 (creation of new states or reconstitution)
• 169 (creation or abolition of upper chambers in
states)
• 239-A (Constitution of centrally administered
areas)
• Para 7 of Fifth Schedule
• Para 21 of Sixth Schedule

5. Second Category
• Special majority (2/3rd of members)
• Those Articles / parts not referred in the first
category come under this category
• These are not mentioned expressly
• One will have to arrive at these provisions by
taking all the parts of the Constitution and
subtracting those mentioned in the “first
category” and those mentioned in “third
category”. Residuary provisions will fall under
this second category

6. Third Category
• Require special majority (2/3rd) + Ratification by
resolution passed by not less than ½ of the State
legislatures
• All provisions referred in Art. 368(2)
– Election of President (Art. 54, 55)
– Extent of executive power of Union and State (Art. 73,
162 respectively)
– Provisions dealing with SC (Ch. IV of Part V)
– Provisions dealing with HC (Ch. V of Part VI)
– Art. 368 (amendment)
– And few more…

7. Case 1
• Kiholo Hollohan v. Zachillhu (AIR 1993 SC 412)
– An amendment to 10th Schedule in effect barred the
jurisdiction of the courts WRT (with respect to)
disqualification of member of a House (MLA / MP)
– An amendment by way of simple majority followed
– Though it did not make amendment to any changes to
parts referred in Art. 368(2)
– SC held that, in effect, it amended the powers of SC
and HC
– SC held the amendment void because, it did not
follow the procedure of special majority as
enumerated under Art. 368(2)

8. Case 2
• Berubari Union and Exchange of
Enclaves re (AIR 1960 SC 845)
– Power to amend constitution conferred on
Parliament includes Art. 1
– In effect, includes power to cede (give up)
national territory in favour of a foreign state!

9. A note on Amendment
• The original Art. 368 (in 1950) was quite simple
• Due to several amendments (esp. 24th
Amendment), this provision has become lengthy
• This was due to the squabble between judiciary
and Parliament WRT amending powers
• Dr. Ambedkar in the Constituent assembly
clarified the members that the amendment
process in India was quite simple compared to
American and Australian Constitution
• Indian Constitution does not have “referendum”
process

10. Transition…
• Now, we are transitioning to Basic Structure
doctrine
• A lot of things here are overlapping
• Practically, a strict line between amendment and
Basic structure doctrine cannot be drawn
• The rules relating to amendment as given under
Art. 368 has been modified by several decisions
of the SC which will be discussed now
• These cases become the content of Basic
structure theory

11. Basic Structure Doctrine

12. 3 stages in Basic Structure Theory
• Pre-Kesavananda position
– No mention of basic structure
• Kesavananda Decision
– Basic structure theory proposed
• Post-Kesavananda
– Basic structure strengthened
– Crystallised, new dimensions added

13. 3 major cases before Kesavananda
• Shankari Prasad Singh Deo v. Union of India (AIR
1951 SC 458)
– Parliament has power to amend fundamental rights
– “Law” in Art. 13 doesn’t include amendment of Constitution
– Amendment by way of Art. 368 done in exercise of constituent
power, not legislative power.
• Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)
– Shankari Prasad was upheld by majority (Bench 3:2)
– Two judges dissented- “certain basic features are sacred”
• Golak Nath v. State of Punjab (AIR 1967 SC 1643)
– Fundamental rights cannot be amended
– Any amendment violating fundamental rights is not allowed in
the scheme of Indian Constitution (problem starts here)

14. Golak Nath effect and 24th
Constitutional Amendment Act
• In Golak Nath, Subba Rao CJ (Chief Justice)
said that Art. 368 only provided “procedure to
amend the constitution” only and not the “power”
to amend. (Prior to 1971, Art. 368 had a
marginal note “procedure to amend” only.
• Due to the difficulties created in Golak Nath, the
Parliament passed the 24th amendment Act in
1971 and made significant changes to Art. 368
and Art. 13 and nullified the Golak Nath effect! ;)
• (Refer to the changes made by 24th amendment.
Somebody drafted the amendments brilliantly to
nullify every effect of Golak Nath)

15. Kesavananda
- birth of basic structure
• Validity of several land reform Acts were questioned
along with 24th, 25th and 29th Amendments to the
Constitution
• Petitioners urged that certain essential elements and
features were sacred and could not be destroyed
• They said these basic features related to human rights
and fundamental rights which people gave to themselves
and are inviolable
• There were 13 judges wrote 11 different judgments
• The judgment is famous for its length and varying
opinions within the judges
• Very difficult to arrive at the conclusion about the end
effect of the judgment!

16. Decision
• All judges held that 24th Amendment was
valid
• All judges held that Parliament has power
to amend any or all provisions of Consti
including FRs
• However… 7 judges held that the
Parliament doesn’t have power to amend
the “basic structure” of the Constitution

17. What Constitutes (contents) Basic
Structure?
• As per Sikri CJ:
– Supremacy of Constitution
– Republican and Democratic form of Govt.
– Secular character of Constitution
– Separation of powers
– Federal Character

18. As per Shelat and Grover
• Those 5 enumerated by Sikri and also
these:
– Mandate to build welfare state under Par IV
– Unity and Integrity of the nation

19. What Constitutes Basic Structure?
As per Hegde and Mukherjea
• Sovereignty of India
• Democratic character of our polity
• Unity of our Country
• Individual freedoms of citizens
• Welfare state and egalitarian society
As per Jaganmohan Reddy:
• Basic structure could be implied from the Preamble
• (seems like this judge is #ForeverAlone)

20. Some trivia
• Do not write this in exams
• Actually, there was no such “majority decision” in
Kesavananda. There were 13 judges who wrote 11
decisions, each being unique. Some judges were not
clear what they had written! Hence, Sikri CJ convened a
separate meeting after the case was decided. He
persuaded 9 out of 13 judges to sign a document what
he called as “majority opinion” or “summary”. Such
practice is actually illegal! This summary itself got
legitimacy due to the later cases and followed by all of
us! There is more to this. However, these “intricacies”
cannot be written in the exams, since it tends to
complicate the already complicated case!

21. Indira Nehru Gandhi v. Raj Narain
(AIR AIR 1975 SC 2299)
• Allahabad HC had invalidated the election of
Indira Gandhi on the ground of corrupt practices
• She appealed to SC and in the meanwhile,
Parliament passed the 39th Amendment to nullify
the decision of Allahabad HC!!
• The 39th Amendment was questioned before the
SC
• SC held that the amendment violated “free and
fair elections (democracy) and judicial review
• The amendment was striked down

22. Chandrachud J in Indira Gandhi
case said…
• This judge took the opportunity to expand
the scope of basic structure by identifying
4 basic features:
– 1. Sovereign democratic republic status
– 2. Equality
– 3. Secularism, Freedom of conscience and
religion
– 4. Govt of laws, not of men

23. Minerva Mills v. Union of India AIR
1980 SC 1789
• Held that, whenever there is a conflict
between FR and DPSP, harmony should
be created between the both
• Such harmony between FRs and DPSP is
a basic feature of Indian Constitution

24. Waman Rao v. Union of India AIR
1981 SC 271
• Held that amendments made to 9th
schedule until Kesavananda decision were
valid
• However, amendments to 9th schedule
made after Kesavananda decision were
open to scrutiny

25. I.R. Coelho v. State of TN
(AIR 2007 SC 861)
• Clarified the decision in Waman Rao case
• Held that 9th schedule was open to scrutiny
on the basis of Basic Structure Doctrine

26. L. Chandrakumar v. Union of India
(AIR 1997 SC 1125)
• Held that Art. 323-A and 323-B (relating to
tribunals) as far as it excluded the jurisdiction of
SC and HC are invalid
• Because they compromise on the basic feature
of “judicial review”.
• Recent case update (FRESH!): on Sept 25,
2014, Rohinton F Nariman J., passed a decision
in “Madras Bar Association v. Union of India”
that National Tax Tribunal Act, 2005 as
unconstitutional because it violated the Basic
Structure of the Constitution.

27. Contents of Basic Structure
• In SR Bommai, “federalism” was said to
be a basic feature
• L. Chandra Kumar case, settled that
judicial review is a basic feature
• Kihoto Hollohon, recognised democracy
as a basic feature

28. Test for basic structure
• In M. Nagaraj v. Union of India
– Citation: (2006) 8 SCC 212
– By applying “width test”, check whether there is any
obliteration of constitutional limitations
– By applying “identity” test, check whether there is any
alteration to the basic structure of the Constitution
• In IR Coelho
– Essence of the right must be the test
– Triangle of Art. 14, 19 and 21 are “essence of right”

29. Conclusion
• Whether basic structure doctrine puts
unnecessary burden on the amending process?
• Whether the Parliament’s hands are tied due to
this doctrine?
• Can have subjective answers to these questions
• Various scholars say that due to this doctrine,
the supremacy of Constitution has been
preserved
• And also, fundamental rights have been
protected.

30. Sources:
• VN Shukla’s Constitution of India, EBC
India
• Article on Basic Structure by TR
Andhiyarujina on The Hindu
• Bare text of the Constitution
• Points made by gagan555@gmail.com