Amendment of the Constitution and

Basic Structure Doctrine (BSD)

Gagan K

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

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

First categoryAll 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

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

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…

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)

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!

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

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

Basic Structure Doctrine

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

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)

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)

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!

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

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

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

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)

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!

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

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

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

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

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

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.

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

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”

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.

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