Jawaharlal Nehru—

“While we want this Constitution to be as solid and as permanent a structure as we can make it,
nevertheless there is no permanence in Constitutions. There should be certain flexibility. If you
make anything rigid and permanent, you stop a nation’s growth, the growth of a living, vital,
organic people. Therefore, it has to be flexible.”

Three distinct amending processes which combines flexibility and rigidity

• Amendment by a simple Majority

– Certain provisions can be amended by a simple majority almost like passing an

ordinary law. For instance creation of new states, alteration in the size of states, or
qualification of Citizenship etc.

• Amendment by special majority

– Most provisions of the constitution requires amendment through a special

majority’ Special majority is where 2/3rd members of house present and voting
including majority of its total membership.

• Amendment by special majority and ratification by at least one half of the State
Legislatures

– For instance election of president, list of subjects in the seventh schedule

Relationship between Centre and states etc.

1) First amendment to the constitution was passed which added Arts 31 A and Art 31 B
and 9th schedule to the Constitution
 Art 31 A provided that any law providing for the land reforms and acquisition cannot be
challenged on the ground that it is violative of any of the fundamental rights guaranteed
under Constitution

Art 31 B gave a blanket protection to those legislations which are inserted in the 9th
schedule making it beyond the scope of judicial review on the ground of its
incompatibility with fundamental rights

Ninth Schedule was added with the primary objective of preventing the judiciary from
invoking the argument of fundamental rights upholding citizens’ right to property

 Shankari Prasad v. Union of India . Union of India. (1951) AIR SC 458

Constitution (First amendment) Act 1951 was challenged on the ground that it takes away
or abridges the rights conferred by Part III of the Constitution. Petitioners argued that
Article 13 prohibits enactment of a law infringing or abrogating the Fundamental Rights,
and that the word “law” in Article 13(2) should include constitutional amendment.

Therefore, the validity of such an amendment has to stand the scrutiny of fundamental
rights. Supreme Court rejected the argument and held that there is a clear distinction
between amending power and general legislative power.

Amending power of the parliament is to be located in Article 368 of the Constitution. Art
13(2) merely deals with ordinary law making powers of parliament and legislatures

 Sajjan Singh v. State of Rajasthan AIR 1965 SC 845 : wherein the validity of the
Constitution 17th Amendment Act, 1964 was challenged the Constitution (seventeenth
Amendment) Act, 1964 had expanded the list of ninth schedule adding certain legislation
to the list. Encouraged by these verdicts land reforms proceeded unchallenged

 Golaknath v. State of Punjab AIR 1967

Eleven-judge bench of the Supreme Court headed by Chief Justice Subba Rao interpreted
that Article 368, of the constitution merely laid down the amending procedure and does
not deal with the power of amendment.
• Fundamental rights are held to be sacrosanct for the protection of individual rights. The
sacro-sanctity of fundamental rights cannot be altered even by an absolute majority of
parliament

• The decision perhaps stems from the fact that fundamental rights are the bedrock of any
democratic structure and need to be protected against any alterations

Emergence of the Basic Structure Doctrine

Parliament reacted to this decision in Golaknath v. State of Punjab by bringing successive

amendments

The Constitution (Twenty Fourth Amendment) Act 1971 incorporated a new clause to
368 that any constitutional provision could be amended by following the “procedure”
contained in Article 368

Limitations of Article 13 (2) of the Constitution with regard to fundamental rights is

inapplicable to any amendment of the Constitution under article 368

The Constitution (Twenty Fifth Amendment) Act 1971 introduced Article 31C and
explicitly gave higher sanctity to Directive Principles of State policy Art 39(b)(c) over
fundamental rights

• Directive Principles contained in Articles 39(b) and (c) were now sought to be given
precedence over fundamental rights contained in Articles 14 and19

• The Constitution (Twenty-Ninth Amendment) Act 1971 further enlarged the 9th
schedule by adding some Kerala land reforms legislations to the 9th schedule

 Validity of these above amendments were challenged in the historic case of

Keshavanand Bharati v. State of Kerala, AIR 1973 SC 1461
a. Majority of the judges did not agree with the view taken by the court in
Golaknath case regarding the implied limitation of amending power
b. Court upheld the Constitution (Twenty Fourth Amendment) Act 1971 and
held that Article 368 confers power to amend all the provisions of
constitution including fundamental rights
 c. Features considered as constituting basic structure

• Supremacy of the Constitution

• Separation of Powers between the legislature, the executive and the

judiciary

• Republican and the democratic form of Government;

• Secular character of the Constitution

• Federal character of the constitution

• The dignity of the individual secured though Fundamental Rights

• The unity and integrity of the nation

• Parliamentary system

• Welfare state on the basis of the Directive Principles of State

Policy

• Sovereignty of India

• Democratic character of the nation

• Unity of the country

Period after Kesavananda saw the expansion and consolidation of the basic structure
doctrine. Supreme Court was presented with the opportunity to deliberate on basic
structure in the case of Indira Gandhi v. Raj Narain AIR 1975. The issue at stake was
The Constitution (Thirty Ninth Amendment) Act 1975 which removed the power of the
Supreme Court to adjudicate on matters regarding elections of the President, Vice
President, Prime Minister and Speaker of the Lok Sabha. Court while upholding validity
of the thirty-ninth amendment struck down the part which sought to take away the power
of judicial review.

Court reiterated the significance of the basic structure concept and added the following
features to the structural ambit of basic structure doctrine.
 – Democracy including free and fair elections,

– The power of judicial review,

– Sovereign democratic republic,

– Equality of status and opportunity,

– Secularism and freedom of conscience and religion,

– Rule of law

 Minerva Mills v. Union of India AIR 1980 SC 1789, the Supreme court struck down clauses
(4) and (5) of the Article 368 inserted by The Constitution (Forty Second Amendment,) 1976
on the ground that these clauses destroyed the essential feature of the basic structure of the
constitution. Court also held amend of 31-C (as done by 42nd amend) as unconstitutional

(((Repeat : The Constitution (Forty –Second Amendment) Act 1976 amended article and
provided Amendment of article 368.- In Article 368 of the Constitution, after clause (3), the
following clauses shall be inserted, namely:- "(4) No amendment of this Constitution
(including the provisions of Part III) made or purporting to have been made under this article
whether before or after the commencement of section 55 of the Constitution (Forty Second
Amendment) Act, 1976] shall be called in question in any court on any ground. (5) For the
removal of doubts, it is hereby declared that there shall be no limitation whatever on the
constituent power of Parliament to amend by way of addition, variation or repeal the provisions
of this Constitution under this Article. It was ruled by the court that a limited amending power
itself is a basic feature of the Constitution

31-C: They also declared harmony and balance between fundamental rights and directive
principles is an essential feature of the basic structure of the Constitution.)))

 Waman Rao v. Union of India, (1981). 2 SCC 587: SC held that all constitutional
amendments made and inserted in 9th Schedule, after the date of the Kesavananda Bharati were
open to judicial review
 L.Chandra Kumar v. Union of India 1995 AIR 1151 & S.P. Sampath Kumar v. Union of
India, AIR 1987, SC 368
– court held that the power of judicial review over legislative action vested in the High Courts
under Article 226 and in the Supreme Court under Article 32 of the Constitution are an integral
part and essential feature of the Constitution

 Central Coal Fields Ltd. v. Jaiswal Coal. 1980 Supp. SCC 471

– Held, effective access to justice is part of the ‘Basic Structure’

 I.R. Coelho v. State of Tamil Nadu 2007 2 SCC 1: Supreme Court applied the doctrine and
held-All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth
Schedule is amended by inclusion of various laws therein shall have to be tested on the
touchstone of the basic or essential features of the Constitution as reflected in Article 21 read
with Article 14, Article 19 and the principles underlying them

1st Constitutional Amendment Act, 1951

It was the first amendment after India became an independent and republican country. Article 15
clause 4 and Article 19 clause 6 were added in Part III of the Constitution. It added Arts 31 A
and Art 31 B and 9th schedule to the Constitution

24th Constitutional Amendment Act, 1971

This amendment came to reverse what was held in Golaknath’s case. According to the
amendment, parliament has the power to amend fundamental rights or any part of the
Constitution. The parliament can, under Article 368, alter or amend any provision of the
Constitution.

42nd Constitutional Amendment Act, 1976

This amendment is also famous as the mini Constitution. This amendment brought a big change
in the Constitution’s preamble by adding the words ‘SOCIALIST’, ‘SECULAR’, and
‘INTEGRITY’ in the preamble. This amendment made it mandatory for the President to work
with the aid and advice of the council of ministers. This amendment also added a vital Part IVA
in the Constitution as Fundamental duties.

44th Constitutional Amendment Act, 1978

After this amendment, the right to property no more remained a Fundamental right in Part III of
the Constitution. Now the right to property is only a legal and Constitutional right under Article
300A.In Article 352, there are three grounds on which a national emergency can be imposed in
India. One of the ground ‘internal disturbance’ was substituted by the words ‘armed rebellion’.
This amendment made it obligatory for the President to follow the advice tendered by the council
of ministers after sending it for reconsideration. Now proclamation of emergency came under the
ambit and judicial review of the court.

52nd Amendment Act, 1985: A new tenth Schedule was added providing for the anti-defection
laws.

86th Amendment Act, 2002

• Elementary Education was made a fundamental right – Free and compulsory education to
children between 6 and 14 years
• Art 45 amended (now up to 6 years of age)
• A new Fundamental Duty under Article 51 A was added – “It shall be the duty of every
citizen of India who is a parent or guardian to provide opportunities for education to his
child or ward between the age of six and fourteen years”

99th Constitutional Amendment Act, 2014

This amendment established the National Judicial Appointment Commission for the appointment
of judges. But this commission was struck down as unconstitutional by the Supreme Court in
2015 and resumed with the collegium system to appoint judges.

101st Constitutional Amendment Act, 2017

This amendment brought Goods and Services Tax as a comprehensive and multi-stage tax. GST
abolished many central and state taxes and brought uniformity to the tax system. It applies to the
whole of India.

The 102nd Constitution Amendment Act of 2018

NCBC
103rd Constitutional Amendment Act, 2019

This amendment added clause 6 in Article 15 and 16, respectively, to provide 10% reservation to
the economically weaker section (EWS) who are not already a reserved category under SC, ST,
and socially and educationally backward classes. The reservation is made for access to
government jobs and admissions.

104th Constitutional Amendment Act, 2020

This amendment has extended the period of reservation of seats for Scheduled Castes and
Scheduled Tribes in the Lok Sabha and state assemblies from Seventy years to Eighty. Removed
the reserved seats for the Anglo-Indian community in the Lok Sabha and state assemblies.

105th Constitutional Amendment Act, 2021

It enables States and Union Territories to identify their own Socially and Educationally
Backward Classes and include them in a list to be published under Article 342A (1).
The 105th Constitution Amendment Act, 2021 has paved the way to bypass the ruling of the
Supreme Court in the Maratha Reservation case (Jaishri Laxmanrao Patil v. Union of India)
which stipulated that only the Central Government could notify socially and educationally
backward classes and not the States or Union Territories.